THE  GIFT  OF 

MAY  TREAT  MORRISON 

IN  MEMORY  OF 

ALEXANDER  F  MORRISON 


RKVIKW 


OF  THE 


Constitution  of  the  United  States 


INCt,UDING 


CHANGES  BY  INTERPRETATION  AND  AMENDMENT 


FOR 


Lawyers  and  Those  Not  Learned  in  the  Law 


BY 

W.   G.   BULLITT 

Of  the  Frankfort,  Ky.,  Bar 


CINCINNATI 

THE  ROBERT  CLARKE   COMPANY 
1899 


Copyright,  1899,  by  W.  G.  Bullitt. 


a 


PREFACE. 


The  tendency  of  the  ofl&cials  of  evety  nation  is  to  aug- 
ment their  own  importance  and  powers  by  grasping  ad- 
ditional powers  for  the  government  they  represent. 

The  accomplishment  of  this  augmentation  of  powers 
to  the  government   must  take  place  by  periodic   steps, 
each  step  appearing  innocent  at  the  time,  or  of  too  little 
^      importance  to  attract  attention. 

^  Every   additional   power   seized    for   the    government 

*      must  be  taken  from  the  reserved  powers,  or  from  powers 
lodged   elsewhere   by   the   organization  of    the  govern- 
z     ment. 

2         In  the  United  States,  certain  powers  are  retained  in 
^      the   states,   and  all  powers  not  granted   to   the  United 
^      States,  nor  prohibited  to  the  states,  are  reserv^ed  to  the 
states  respectively  or  the  people. 

yj  This  division  of  powers  between  the  United  States  and 

fC  ... 

S      the   several   states,    makes   each,    m   guarding  its  own 

o      powers,   necessarily  guard  the   reserv-ed  powers  of    the 

t      people  ;  so  that,  whether  the  powers  so  seized  for  the 

United  States  be  taken  from  the  people,  or  the  states,  the 

people  will  be  the  sufferers  ;  hence,  we  must  not  onlj'  be 

watchful  of  the  reserved  powers  of  the  people,  but  must 

be  mindful  of  the  powers  of  the  states. 

(iii) 


434404 


IV  PREFACE. 

"  It  is  very  uncommon  to  see  the  laws  and  constitution, 
of  a  state  openly  and  boldly  opposed  ;  it  is  against  silent 
and  gradual  attacks  that  a  nation  ought  to  be  particularly 
on  its  guard.  Sudden  revolutions  strike  the  imagina- 
tions of  men  ;  they  are  detailed  in  history  ;  their  secret 
springs  are  developed.  But  we  overlook  the  changes 
that  insensibly  happen  by  a  long  train  of  steps  that  are 
but  slightly  marked.  It  would  be  rendering  nations  an 
important  service  to  show  from  history  how  many  states 
have  thus  entirely  changed  their  nature,  and  lost  their 
original  constitution. 

' '  This  would  awaken  the  attention  of  mankind — im- 
pressed thenceforward  with  this  excellent  maxim  (no  less 
essential  in  politics  than  in  morals)  prijicipiis  obsia — they 
would  no  longer  shut  their  eyes  against  innovations 
which,  though  inconsiderable  in  themselves,  may  serve 
as  steps  to  mount  to  higher  and  more  pernicious  enter- 
prises." * 

Powers  not  granted  by  the  letter  of  the  constitution 
have  been  adjudged  to  the  United  States  by  the  supreme 
court  on  the  alleged  theory  that  they  were  incidental  to 
the  sovereign  government  thereof. 

Sovereignty,  being  supreme,  absolute,  uncontrollable  au- 
thority, it  can  neither  be  divided  nor  put  in  the  custody 
of  two  separate  jurisdictions.  Therefore,  if  it  was  re- 
served to  the  people  (as  is  contended  for  by  all)  it  must 
be  wholly  in  the  people  ;  and,  if  it  is  in  the  government, 
it  must  be  wholly  in  the  government. 


*  Vattel's  Law  of  Nations,  Chap.  3,  p.  9. 


PREFACE.  V 

Nor  can  it  be  divided  between  the  United  States  and 
the  respective  states,  as  held  by  the  supreme  court  in  the 
McCulloch  case  ;  so  that,  unless  that  authority  resides 
exclusively  in  the  people,  it  must  be  exclusively  in  the 
the  United  States  (as  its  authority  must  be  paramount  to 
that  of  the  states) ,  and  the  United  States  must  be  an 
empire,  with  the  states  as  its  provinces,  instead  of  the 
federal  republic  the  American  people  boast  of. 

The  executive  has  also  assumed  powers  not  granted  to 
it  by  the  letter  of  the  constitution,  and  in  some  instances 
has  encroached  on  the  powers  expressly  delegated  to 
the  legislative  department  by  the  constitution. 

The  congress  has  also  assumed  powers  not  granted  to  it 
by  the  letter  of  the  constitution,  or  by  the  spirit  of  that 
instrument. 

The  assumptions  of  ungranted  powers  by  each  of 
said  departments  has  been  accomplished  by  the  ex- 
ercise of  some  apparently  unimportant  authority  at 
periodic  steps,  or  an  authority  claimed  to  be  necessary 
for  the  time,  and  not  to  be  repeated,  though  they 
have  been  invariably  used  as  precedents  to  excuse  the 
exercise,  not  only  of  the  same  powers,  but  to  go 
further  in  their  encroachments  on  the  reser\^ed  powers 
of  the  people.  Sometimes  their  assumptions  of  powers 
have  been  claimed  as  necessary  to  keep  up  with  advan- 
cing civilization  ;  but  this  plea  is  a  mere  apology  to  quiet 
the  people  while  the  construction  of  a  new  form  of  gov- 
ernment, to  be  builded  on  interpretation  alone,  is  being 
constructed  step  by  step,  to  take  the  place  of  the  repub- 
lican form  of  government  ordained  by  the  constitution. 


4 


vi  PREFACE. 

The  constitution  itself  furnishes  incontrovertible  evi- 
dence of  the  bad  faith  of  this  plea.  That  instrument 
provides  ample  facilities  for  its  own  amendment  when- 
ever the  advance  in  civilization  shall  require  an  amend- 
ment ;  and  every  substantial  advance  in  civilization  is 
encouraged  by  the  constitution,  by  authorizing  congress 
to  protect  inventions,  writings,  and  developments  in  the 
fine  arts,  by  patent  rights  and  copyrights. 

However,  no  amendment  can  be  made  to  the  constitu- 
tion without  the  sanction  of  the  people,  and  their  sanc- 
tion thereto  can  not  be  secured  without  informing  them 
of  the  character  of  the  desired  change,  and  this  informa- 
tion would  likely  divulge  the  secret  object  of  the  ad- 
visers of  the  change,  and  check  their  revolutionary 
schemes. 

This  Review  is  written  in  plain  English,  avoiding  all 
unnecessary  technicalities  ;  and  the  provisions  of  the  con- 
stitution are  explained  according  to  the  general  use  and 
meaning  of  the  words  and  phrases  by  which  they  are 
expressed,  as  used  at  the  time  the  constitution  was 
ordained.  I  have  endeavored  to  give  to  each  provi- 
sion the  meaning  and  functions  it  was  intended  to  per- 
form by  the  convention  that  made  the  constitution,  and 
the  construction  given  by  the  several  departments  of 
the  United  States,  and  the  interpretation  as  advo- 
cated by  each  of  the  two  great  political  parties,  so 
that  the  reader  may  have  the  benefit  of  each  interpreta- 
tion. 

Of  course,  I  have  used  the  strongest  arguments  in  my 


PREFACE.  vn 

power  to  sustain  my  uuderstaudiug  of  the  provisions  of 
that  great  instrument,  and  the  oflace  each  is  to  perform, 
and  wherever  a  different  interpretation  than  the  letter 
thereof  is  indicated,  whether  by  the  supreme  court,  the  ex- 
ecutive, or  legislative  departments,  or  by  either  of  the  two 
great  political  parties,  I  have  argued  in  favor  of  the  in- 
terpretation that  sustains  the  letter  thereof. 

Instead  of  relying  on  the  statements  of  any  one  as  to 
what  was  meant  by  the  several  provisions  thereof  (except 
the  letters  of  Messrs.  Madison,  Hamilton  and  Jay  pub- 
lished while  the  constitution  was  before  the  people  of  the 
States  for  adoption,  and  compiled  in  a  volume  known  as 
the  Federalist),  I  have  relied  on  the  organization  and 
lodgment  of  the  powers  and  duties  under  the  constitu- 
tion ;  the  manner  they  are  required  to  be  executed  by 
the  officials  intrusted  with  them  ;  the  retention  of  the 
sovereign  authority  in  the  people  as  shown  by  the  great 
Declaration  of  Independence,  and  the  provision  of  the 
constitution  authorizing  the  people  of  the  states  to  amend 
or  alter  the  constitution  without  the  sanction  of  the 
United  States,  or  any  department  thereof,  by  demanding 
a  federal  convention  to  propose  amendments  to  be  rati- 
fied by  conventions  of  the  states,  as  was  done  in  making 
the  constitution  of  1787  ;  the  language  used  to  express  the 
several  provisions,  particularly  that  used  in  the  preamble 
delaring  the  objects  for  ordaining  the  constitution  ;  the 
language  used  in  proposing  the  several  provisions  of  the 
constitution  by  the  delegates  in  the  convention,  and  the 
action  of  the  convention   thereon,   before  adopting   the 


Viii  PREFACE. 

same  as  provisions  of  the  constitution  to  ascertain  the 
intent  and  meaning  the  delegates  in  the  convention 
ascribed  to  each  provision  of  the  constitution  ;  and  the 
functions  the  convention  intended  each  provision  to  per- 
form in  the  government  of  the  United  States  and  in  the 
several  states  of  the  more  perfect  union. 

While  every  provision  of  the  constitution  is  to  some 
extent  considered  in  this  Review,  that  class  of  powers 
relating  to  the  civil  rights  and  business  interests  of  the 
people  more  properly  belong  to  a  commentary  on  the 
constitution,  which  is  beyond  the  purpose  of  this  work  ; 
they  are  therefore  but  briefly  explained. 

But  that  class  of  powers  that  relate  to  the  form  and 
character  of  the  government  of  the  United  States,  and 
its  relations  to  the  states  and  the  people,  are  extensively 
and  minutely  shown,  together  with  the  conflicting  inter- 
pretations by  either  of  the  three  departments,  and  by  the 
two  great  political  parties,  with  each  of  which  the  inter- 
pretation given  by  this  Review  is  carefully  compared. 

The  interpretation  adhered  to  in  this  Review  conforms 
to  the  Declaration  of  Independence  and  the  great  Ameri- 
can principles  introduced  into  the  science  of  government 
by  our  colonial  ancestors,  which  are  shown  to  have  been 
incorporated  into  the  constitution  of  1787,  and  to  form 
the  guiding  principle  of  that  great  charter,  so  that  by 
those  guides  every  power  granted  by  the  constitution 
should  be  construed. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 
Relates  to  charters  and  settlements,  under  English  authority,  of 
what  constitutes  the  United  States.— The  first  permanent  set- 
tlement was  made  in  1607,  the  second  in  1620.— Brief  reference 
to  the  origin  and  growth  of  the  principles  taken  from  the 
English  constitution.— Of  the  three  great  American  principles 
(viz)  :  how  to  retain  the  sovereignty  in  the  people  with  gov- 
ernments as  municipal  agents  incorporated  by  themselves. — 
The  ordaining  conventions  as  the  only  organs  through  which 
to  express  the  sovereign  will  of  the  people. — The  separation  of 
the  two  grand  objects  of  government  from  each  other  and 
committing  each  to  a  separate  jurisdiction. — The  organization 
of  the  states  and  confederation  as  respective  parts  of  a  com- 
plete municipality. — The  date  the  states  constructed  their  re- 
spective state  corporations,  and  the  date  each  state  ratified  the 
articles  of  confederation, i 

CHAPTER  II. 

Relates  to  calling  and  holding  the  convention  of  1787,  to  amend 
the  articles  of  confederation. — The  resolution  offered  and  dis- 
cussed.— The  division  of  the  delegates  on  the  character  of  gov- 
ernment, whether  it  should  be  "  a  federal  republic  "  or  a  strong 
empire. — The  compromise  on  the  plan  of  the  report  of  the 
grand  committee,  giving  the  corporations  of  the  states  repre- 
sentation through  the  senate,  and  the  people  of  the  states  rep- 
resentation through  the  house  of  representatives. — The  adop- 
tion and  report  of  the  constitution,  ....        33 

(ix) 


TABLE   OF   CONTENTS. 


CHAPTER   III. 


Relates  to  the  various  interpretations  as  to  the  character  of  gov- 
ernment ordained  by  the  constitution. — The  interpretation  of 
the  supreme  court  and  anti-slavery  party  ;  that  by  the  pro- 
slavery  party  and  others  ;  and  that  which  appears  to  be  the 
only  logical  interpretation  consistent  with  the  compromise  of 
the  convention, .82 

CHAPTER   IV. 

Relates  to  the  organization  of  the  two  houses  of  congress,  so  as  to 
make  the  senate  represent  the  union  of  the  municipal  corpora- 
tions of  the  states,  and  the  house  of  representatives  to  repre- 
sent the  union  of  the  people  of  the  states. — The  functions  of 
each  house  separately,  and  of  both  combined,  .        .     109 

CHAPTER  V. 
Relates  to  the  authority  of  congress. — To  lay  and  collect  taxes. — 
To  borrow  money. — To  coin  money  and  regulate  the  value 
thereof  and  of  foreign  coin. — To  regulate  commerce  with 
foreign  nations,  and  among  the  several  states,  and  with  the 
Indian  tribes, 131 

CHAPTER   VI. 

Relates  to  powers  appertaining  to  the  political  laws,  such  as  au- 
thority to  establish  naturalization  laws. — Bankrupt  laws. — 
Prescribe  punishment  for  counterfeiting  the  coin  or  securities 
of  the  United  States. — To  establish  post-offices  and  post- 
roads. — ^To  promote  the  progress  of  science  and  by  protecting 
inventors  by  patent-rights  and  copy-rights. — To  constitute 
tribunals  inferior  to  the  supreme  court. — To  define  punishment 
for  piracies. — To  declare  war. — Raise  and  support  armies. — 
Provide  and  maintain  a  navy. — Make  rules  for  the  government 


TABLE   OF   CONTENTS.  XI 

of  the  land  and  naval  forces.- — Provide  for  calling  forth  the 
militia. — Provide  for  organizing,  arming  and  disciplining  the 
militia. — To  exercise  legislation  over  the  district  set  apart  for 
the  capitol. — To  make  laws  to  carry  the  powers  granted. — To 
limitations  on  the  powers  of  congress. — And  to  limitations  on 
the  powers  of  the  states, I74 

CHAPTER   VII. 

Relates  to  the  organization  of  the  executive. — The  mode  of  electing 
the  president  and  vice-president. — The  term  of  ofSce  of  each. — 
The  powers  vested  in  each. — And  the  mode  the  office  of  presi- 
dent shall  be  filled  in  absence  or  inability  of  the  president  to 
serve, 205 

CHAPTER  VIII. 

Relates  to  the  organization  of  the  judiciary  department. — The 
change  made  therein  by  the  committee  on  style. — The  powers 
and  jurisdiction  as  changed  by  said  committee. — Which  powers 
and  jurisdiction  are  disputed  by  able  statesmen,  and  were  dis- 
puted by  Presidents  Jefferson,  Jackson  and  Lincoln,  and  said 
powers  and  jurisdiction  are  in  conflict  with  the  sixth  article  of 
the  constitution, 236 

CHAPTER  IX. 
Relates  to  the  cohesive  principles  upon  which  the  union  rests. — Such 
as  requiring  full  faith  and  credit  to  be  given  in  each  state  to 
the  public  acts  of  all  of  the  states ;  each  state  being  required 
to  extend  equal  privileges  and  immunities  to  the  citizens  of  all 
of  the  states. — ^The  requiring  of  each  state  to  capture  fugitives 
from  justice  and  upon  requisition  turn  them  over  to  the  au- 
thorities of  the  state  in  which  the  crime  was  committed. — Each 
of  which  provisions  constitute  the  supreme  law  of  the  land, 


Xll  TABLK   OF   CONTENTS. 

notwithstanding  any  law  of  congress  or  any  state  to  the  con- 
trary.— The  mode  provided  by  the  constitution  for  amending 
the  same. — Defining  what  shall  constitute  the  supreme  law  of 
the  land. — Requiring  all  officers  of  the  several  states  and  of 
the  United  States  to  be  bound  by  oath  or  affirmation  to  support 
the  constitution  ;  and  when  nine  states  ratify  the  constitution 
it  shall  be  binding  between  the  states  ratifying  it,         .         268 

CHAPTER  X. 

Relates  to  the  several  amendments  of  the  constitution. — ^The  first 
ten  amendments,  frequently  spoken  of  as  the  bill  of  rights,  are 
extensively  considered. — The  eleventh  amendment  restrains  and 
limits  the  jurisdiction  of  the  courts  of  the  United  States. — ^The 
twelfth  changes  the  plan  of  electing  president  and  vice- 
president. — ^The  thirteenth  abolishes  the  institution  of  slavery 
in  the  United  States. — The  fourteenth  purports  to  declare  the 
native  born  of  African  descent  citizens  of  the  United  States 
and  of  the  state  wherein  they  reside ;  but  it  concedes  on  its 
face  that  the  states  have  the  right  and  ability  to  defeat  the 
declaration  of  citizenship,  or  the  right  to  vote  of  said  native. — 
But  the  fifteenth  amendment  proposes  to  force  the  states  to  per 
mit  them  to  vote, 316 


REVIKW 


Constitution  of  the  United  States. 


CHAPTER    I. 

Organization  of  the  States  and  Confederation. 


The  first  permanent  settlement  under  English  author- 
ity in  this  country,  was  made  under  a  grant  to  two 
companies  by  the  sovereign  kingdom  of  Great  Britain,  in 
1606,  in  the  name  of  Sir  Thomas  Gates  and  others.  The 
first  company  consisted  of  citizens  of  London  and  else- 
where, and  the  second  company  consisted  of  citizens  of 
Bristol,  Exeter,  Plymouth  and  elsewhere. 

The  grant  to  both  companies  comprised  all  the  terri- 
tory between  north  latitude  34°  and  45°,  extending  from 
the  Atlantic  ocean  one  hundred  miles  inland.  The  part 
thereof  granted  to  the  first  company  comprised  all  the 
territory  between  latitude  34°  and  41°;  and  the  part 
thereof  granted  to  the  second  company  comprised  the 
territory  between  north  latitude  38°  and  45°.  It  will 
be  obser\'-ed  that  a  conflict  appears  in  the  boundaries 
granted  to  these  two  companies,  but  an  amendment  of 
the  charter  of  the  first  company,  in  1609,  changed  the 
boundary  of  the  territory'  granted  to  that  company,  so 
as  to  extend  two  hundred  miles  northwardly,  and  two 
hundred  miles  southwardly  from  Point  Comfort,  in  Vir- 


2  ",  .'CONSTITUriOJSr-  OF;THE   UNITED   STATES. 

ginia,  pp4he  Atlantic  coast,  and  to  extend  from  sea  to 
sea:'*'-  'Thepuipose  oi  England  in  planting  her  colonies 
in  this  country  was  to  acquire  vacant  territory,  and  the 
amendment  of  the  charters  of  these  two  companies  was 
to  extend  the  actual  possession  of  that  kingdom  to  the 
Pacific  ocean,  with  a  view  of  appropriating  the  territory 
between  Canada  and  Florida  from  sea  to  sea.f 

The  first  company  sent  over  three  ships  laden  with 
emigrants  to  aid  in  settling  the  country  (under  said  grant 
to  said  first  company),  to  be  known  as  Virginia.  But 
the  emigrants  that  came  over  in  1606  made  no  permanent 
settlement,  until  another  colony  arrived  in  the  spring  of 
1607,  whose  ships  landed  at  James  City  (afterward  called 
Jamestown),  on  the  James  river.  The  charter  of  that 
company  was  again  amended  in  1611-12,  which  amend- 
ment provided  for  a  treasurer,  and  a  London  board  or 
committee,  to  manage  the  financial  affairs,  all  of  whom 
were  required  to  reside  in  England  and  hold  their  meet- 
ings in  lyondon,  and  a  governor,  to  be  appointed  by  the 
king,  to  preside  over  the  colony. 

The  London  board  of  directors  or  committee  was  au- 
thorized to  provide  for  and  constitute  such  officers  as  that 
committee  and  the  governor  should  agree  on,  to  manage 
the  affairs  of  the  colony  ;  and  at  the  instance  of  the  board 
of  managers  residing  in  England,  a  committee  or  board 
of  managers  to  reside  in  the  colony  was  instituted  to  aid 
the  governor,  which  was  authorized  by  the  amendment 
of  161 1- 1 2,  and  authority  was  also  given  to  adopt  rules 
for  the  general  welfare  of  the  colony. 

By  selling  the  lands  in  small  parcels  to  those  who  would 
settle  on  them,  this  first  colony  prospered,  and  as  it  in- 
creased in  wealth  and  population  it  grew  in  power,  and 


■*Poore,  "Fed.  and  State  Const,  and  Col.  Charters" — Virginia., 
t  Ibid. — Massachusetts. 


ORGANIZATION   OF   THK   STATES,  ETC.  3 

with  that  increase  in  wealth  and  power  came  a  desire  for 
greater  liberty  and  a  more  congenial  government ;  and 
the  people  began  to  show  such  a  spirit  of  unrest  as  to 
cause  Sir  George  Yeardly,  the  then  governor,  to  call  a 
general  assembly,  composed  of  representatives  from  the 
several  boroughs  and  plantations,  in  1619,  to  exercise 
the  functions  of  legislation  ;  and  this  was  the  first  legis- 
lature that  ever  assembled  on  this  continent.  This  body 
of  representatives  of  course  acted  in  conjunction  with 
the  committee  chosen  by  the  English  directors  and  the 
governor,  which  gave  this  first  legislature  some  resem- 
blance to  the  British  parliament. 

This  example  of  a  domestic  parliament  to  regulate 
the  internal  affairs  of  the  colony  was  found  to  be 
so  indispensable  to  the  welfare  and  quiet  of  the 
colony  as  to  induce  the  English  committee  to  issue 
a  permanent  ordinance  in  1621,  establishing  a  legis- 
lative representation  of  the  colony  fashioned  after  the 
British  parliament.  The  English  committee  appointed 
the  council,  composed  of  citizens  of  the  colony,  which 
corresponded  to  the  House  of  Lords  ;  and  the  citizens  of 
the  plantations  and  boroughs  elected  representatives  to 
another  house,  which  two  houses  acted  separately.  This 
lower  house  corresponded  with  the  House  of  Commons 
in  the  British  parliament,  and  the  governor  occupied  the 
relation  of  chief  executive.  After  1627  the  governors 
were  elective  by  the  two  houses  of  the  legislative  depart- 
ment ;  but  if  they  failed  to  elect,  then  the  king  might 
appoint  a  governor,  provided  he  appointed  a  citizen  of 
the  colony  known  to  be  favorable  to  the  welfare  of  the 
colony. 

The  charter  of  the  second  company  was  renewed  in 
1620,  and  by  that  renewed  charter  the  boundary  was 
changed,  so  as  to  embrace  the  territory  between  north 
latitude    40°  and  48°,  which  left  a  gap  between  the  two 


4  CONSTITUTION   OP   THE!   UNITED  STATES. 

grants  instead  of  a  lap,  as  it  was  under  the  charter  of 
1606;  and  the  second  company  was  then  named  ''New 
Englaiid,''  under  the  amendment  of  1620.*  Under 
that  amendment,  or  renewed  charter,  the  Plymouth  set- 
tlement first  began  by  the  emigration  brought  over  on 
the  Mayflower. 

As  the  colony  of  Virginia  had  demonstrated  that  a 
liberal  government  would  cause  the  colonies  the  more 
readily  to  be  settled  up,  and  therefore  greatly  redound  to 
the  interest  of  the  stockholders,  the  Plymouth  emigrants 
were  assured  of  the  aid  of  their  English  committee  in 
giving  them  a  liberal  government  for  their  colony.  The 
emigrants  who  came  over  on  the  Mayflower  planned  their 
government  while  on  board  the  ship,  and  proceeded  to 
organize  under  that  government  as  soon  as  they  were 
landed. 

The  other  colonies  obtained  their  respective  charters 
many  years  after  that  of  New  England,  and  they  were 
generally  granted  with  such  form  of  government  as  those 
who  were  deputed  to  apply  for  them  would  ask  for,  and 
indeed  they  were  often  prepared  and  voted  on  by  the 
people  before  the  charter  would  be  applied  for,  and  were 
seldom,  if  ever,  refused. 

The  colonies,  settled  by  English  people  under  authority 
of  the  crown  of  England,  brought  with  them  the  English 
common  law  and  constitution,  as  well  as  their  British 
charters  ;  and  when  the  separation  took  place  it  left  the 
people  clothed  with  English  common  law,  and  the  entire 
sovereign  authority  thereof  ;  although  they  may  have 
lost  the  provisions  of  their  respective  charters,  as  the 
charters  were  entirely  municipal,  and  were  sustained 
alone  by  the  support  they  were  getting  from  the  sov- 
ereign kingdom  of  Great  Britain  ;  and  when  the  munici- 

*  Poore,  "  Charters, "  etc. — Massachusetts. 


ORGANIZATION    OF   THEJ   STATES,  ETC.  5 

pal  cord  that  bound  the  colonies  to  Great  Britain  was 
severed,  they  could  no  longer  draw  any  municipal  au- 
thority from  that  kingdom. 

But  as  all  sovereign  authority  originally  comes  from 
the  people,  and  their  rules  and  customs,  or  common  law, 
antedate  and  constitute  the  basis  of  the  government,  it  is 
never  lost  with  the  loss  of  the  government,  but  survives 
the  government,  as  a  part  of  the  civilization  of  the  people 
of  the  country.  Still,  the  colonies  chose  to  retain  the 
laws  enacted  by  themselves  under  their  British  charters, 
and  carried  them  into  their  respective  state  governments 
under  constitutional  sanction. 

The  colonies  originating  under  British  authority,  and 
the  people  thereof,  being  clothed  with  the  English  com- 
mon law  and  the  British  constitution,  as  far  as  applicable 
to  the  condition  and  needs  of  each  colony,  many  valua- 
ble principles  were  drawn  from  the  English  constitution 
and  common  law,  that  enter  into  the  American  system, 
therefore  a  brief  mention  of  the  origin  and  growth  of 
such  of  the  principles  of  the  English  common  law  and 
constitution  as  enter  into  and  become  a  part  of  the  Amer- 
ican system,  may  aid  in  reaching  a  clearer  understanding 
of  the  American  system. 

Whatever  may  have  been  the  laws  or  customs  of  the 
British,  it  is  not  necessary  to  inquire  into,  as  they  were 
supplanted  by  the  Angles  or  English,  a  race  of  people 
who  came  in  the  fifth  centurj'  from  the  heart  of  the  pen- 
insula that  separates  the  Baltic  from  the  North  sea,  who 
after  many  years  of  relentless  struggle,  with  the  aid  of  the 
Jutes  and  Saxons,  succeeded  in  conquering  the  Britons. 
Therefore  we  must  look  to  the  customs  and  laws  of  the 
Angles,  or  English  people,  for  the  fundamental  principles 
of  the  constitution  of  Great  Britain. 

The  most  important  and  guiding  principle  upon  which 


6  CONSTITUTION   OF   THE   UNITED   STATES. 

the  English  civilization  and  constitution  was  founded, 
consisted  of  the  sacredness  with  which  the  family  and 
family  governments  were  regarded.* 

Whether  these  conquerors  drew  their  sacred  regard  for 
their  home  governments  from  biblical  revelation,  or  from 
the  natural  inclination  to  sustain  their  domestic  tran- 
quillity and  family  governments,  is  not  material  to  this 
inquiry. 

However,  Schlegel,  in  his  great  work  on  the  philoso- 
phy of  history,  claims  that  the  four  great  convulsions  of 
the  world  became  necessary  to  purge  the  world  of  the 
sins  that  grew  out  of  a  disregard  of  marital  relationship. 
It  is  true,  the  language  used  in  pronouncing  the  curse, 
or  judgment  in  each  case,  includes  that  sin  ;  though  other 
sins  were  also  mentioned  in  the  judgments,  still  it  must 
be  admitted  that  the  sins  named  in  each  judgment  were 
in  some  way  connected  with  and  arose  out  of  disregard 
of  monogamy  in  marital  relationship. 

However,  wherever  those  unlettered  invaders  derived 
their  sacred  regard  for  their  family  government,  and 
strict  adherence  to  monogamy  and  loyalty  in  marriage, 
the  moral  life  growing  out  of  it  constituted  the  foundation 
of  their  future  greatness  as  a  nation  of  people. 

The  recognition  of  marriage  being  instituted  by  God, 
as  a  sacred  institution,  necessarily  carries  with  it  the  rec- 
ognition of  a  government  of  divine  authority  ;  and  as  no 
government  can  subsist  without  a  head,  and  rules  to  be 
obeyed,  from  the  natural  formation  of  man  and  woman, 
as  well  as  the  natural  division  of  duties  consigned  to 
each,  the  man  must  necessarily  constitute  the  head  of 
the  family  government. 

So  that  the  husband  and  father,  while  acting  as  the 
head  of  his  family,  is  authorized  to  bind  them  in  compact 

*  Green's  English  People,  cti.  i  (larger  edition). 


ORGANIZATION   OF   THE   STATES,  ETC.  ^ 

or  covenant  with  other  families,  in  order  to  secure  the 
maintenance  of  the  cherished  rehgious  and  civil  rights  to 
be  enjoyed  by  his  family,  together  with  the  families  of 
the  other  parties  to  the  covenant  or  compact ;  this  may 
be  the  foundation  of  representative  government  brought 
by  that  people  with  them  to  Great  Britain,  which  is  so 
thoroughly  grounded  in  their  system  of  government. 
We  find  in  the  earlier  period  of  the  history  of  that 
people,  that  their  village  assemblies  or  motes,  consisted 
of  males  capable  of  bearing  arms,  or  who  had  families ; 
and  those  village  motes  selected  representatives  to  a 
higher  assembly  known  as  the  township  or  hundred 
mote.  These  motes  not  only  made  laws  but  decided  con- 
troversies between  adverse  parties ;  the  township  mote 
having  appellate  or  revisory  jurisdiction  over  the  de- 
cisions and  acts  of  the  village  mote.* 

There  was  still  another  assembly,  variously  styled 
Michel-gemote  or  great  meeting,  but  better  known  by 
the  name  Wittena-gemote,  or  the  meeting  of  the  wise 
men.  When  this  council  first  began  is  not  known, 
though  it  was  familiar  to  the  different  kingdoms  of  the 
Heptarchy,  and  after  the  union  it  was  ordered  by  Alfred 
that  this  council  should  meet  twice  a  year  or  oftener, 
perpetually,  t 

The  Angles,  or  English  invaders,  brought  with  them 
another  assembly  known  as  the  war  host,  or  folk  mote, 
which  was  supposed  to  be  an  assembly  of  the  whole  peo- 
ple, and  all  freemen  and  soldiers,  as  well  as  the  leaders, 
were  entitled  to  seats  in  this  mote.  The  villagers  gen- 
erally selected  the  representatives  to  this  assembly,  which 
was  not,  however,  a  regular  provision  of  the  govern- 
ment,   but  was   called   into    existence   only   in   cases  of 

*  Green,  ch.  i  (larger  ed.). 

t  Blackstone,  vol.  i,  pp.  147-149. 


8  CONSTITUTION   OF   THE  UNITED   STATES. 

emergency,  to  regulate  wars,  and  was  authorized  to  de- 
cide whether  to  engage  in  conquest  of  other  countries ; 
and  it  had  jurisdiction  to  change  the  government  so  as 
to  make  it  adequate  to  the  exigencies  of  the  wars,  or 
movements  in  making  new  conquests.  But  as  the  man- 
agement of  armies  in  the  contest  with  the  Britons  re- 
quired a  compact  government  and  rulers,  this  assembly 
was  permitted  to  fall  into  disuse,  which  brought  about 
the  establishment  of  kings  to  rule  over  that  country.* 

It  is  claimed  that  the  sovereignty  of  that  people  re- 
sided in  the  village  motes.  But  when  we  recall  the  fact 
that  sovereignty  is  supreme,  irresistible,  absolute,  uncon- 
trolled authority,  as  said  by  Mr.  Blackstone,t  it  must  be 
above  all  law,  and  authorized  to  change  the  form  of  the 
government  or  its  constitution  at  will ;  and  that  the  ac- 
tions of  the  village  mote  being  subject  to  revision  by  the 
township  mote,  that  arbitrary,  uncontrolled  authority 
could  not  reside  in  the  village  mote.  The  war  host,  or 
folk  mote,  alone  was  authorized  to  change  the  govern- 
ment, though  this  mote  had  no  permanent  existence, 
and  whenever  it  should  adjourn  it  ceased  to  exist ;  but 
another  war  host  could  be  called  into  existence  by  the 
villagers  at  any  time. 

Exactly  what  steps  were  necessary  to  be  taken  to  au- 
thorize calling  into  existence  the  war  host,  is  not  given 
with  certainty.  But  when  the  villagers  called  into  ex- 
istence the  war  host,  and  selected  the  representatives  to 
the  same,  there  was  no  appeal  from  that  action  of  the 
villagers  to  the  hundred  mote.  It  therefore  follows  that, 
whenever  the  village  mote  acted  within  its  jurisdiction 
as  a  part  of  the  organized  government,  an  appeal  would 
lie  to  the  hundred  mote  ;  but  as  the  folk  mote,  or  war 


*  Green's  English  People,  ch.  i  (larger  edition). 
t  Blackstone,  vol.  i,  p.  49. 


ORGANIZATION   OF   THE   STATES,  ETC.  9 

host,  was  outside  of  the  government,  the  villages  had 
no  authority  as  a  part  of  the  government  to  institute  it, 
or  to  select  the  representatives  thereto.  Therefore,  when- 
ever the  folk  mote,  or  war  host,  was  instituted,  it  must 
have  been  by  the  action  of  the  villagers  individually, 
and  not  as  representatives  of  the  village  mote.  Conse- 
quently the  sovereignty  resided  not  in  the  village  mote, 
but  in  the  villagers,  or  the  heads  of  the  famihes  residing 
within  the  boundary  thereof.  The  only  mode  by  which 
the  villagers  could  give  expression  to  their  sovereign 
will  was  through  the  folk  mote,  or  war  host. 

At  that  time  it  was  thought  that  a  government  could 
not  exist  without  possessing  sovereignty  within  its  or- 
ganization ;  hence  the  authority  of  the  villagers  to 
change  or  modify  the  government  through  the  folk  mote 
must  have  been  a  reversionary  right  to  regain  the  sov- 
ereign authority. 

Mr.  Blackstone  says  :  "It  must  be  owned  that  Mr. 
Locke  and  other  theoretical  writers  have  held  that  '  there 
remains  still  inherent  in  the  people  a  supreme  power  to 
remove  or  alter  the  legislative,  when  they  find  the  legis- 
lative act  contrary  to  the  trust  reposed  in  them ;  for, 
when  such  trust  is  abused,  it  is  thereby  forfeited,  and 
devolves  to  those  w'ho  gave  it.'  But,  however  just  this 
conclusion  may  be,  in  theory,  we  can  not  practically 
adopt  it,  nor  take  any  legal  steps  for  carrj'ing  it  into  ex- 
ecution, under  any  dispensation  of  government  at  pres- 
ent actually  existing.  For  this  devolution  of  power  to 
the  people  at  large,  includes  in  it  a  dissolution  of  the 
whole  form  of  government  established  by  that  people, 
reduces  all  the  members  to  their  original  state  of  equal- 
ity, and,  by  annihilating  the  sovereign  power,  repeals  all 
positive  laws  whatsoever  before  enacted.  No  human 
laws  will,  therefore,  suppose  a  case,  which  at  once  must 
destroy  all  law,  and  compel  men  to  build  afresh  upon  a 


lO  CONSTITUTION   OP  THE   UNITED   STATES. 

new  foundation  ;  nor  will  they  make  provisions  for  so 
desperate  an  event,  as  must  render  all  legal  provisions 
ineffectual.  So  long,  therefore,  as  the  English  constitu- 
tion lasts,  we  may  venture  to  afl&rm  that  the  power  of 
parliament  is  absolute  and  without  control. ' '  * 

The  learned  commentator  might  have  gone  further, 
and  with  great  force  have  added,  that  as  such  forfeiture 
must  depend  on  the  conviction  of  a  betrayal  of  the  trust, 
and  those  to  be  so  convicted  being  public  officials,  would 
necessarily  have  control  of  the  forces  of  the  government 
to  enable  them  to  execute  the  trust  so  betrayed,  with 
those  forces  at  their  disposal  they  could  prevent  a  trial 
of  themselves  ;  or  they  might  permit  a  trial,  and  refuse 
to  surrender  the  forces  of  the  government. 

Should  the  officials,  in  good  faith,  believe  they  were 
but  discharging  their  duty,  although,  as  matter  of  fact, 
they  might  be  exercising  doubtful  powers,  they  ought 
not  to  surrender  the  forces  of  the  government,  but  on 
the  contrary  they  ought  to  hold  on  to  them,  and  main- 
tain the  government  and  its  general  welfare,  as  they 
conscientiously  believe  to  be  their  duty.  Hence  a  mere 
reversionary  right  to  reclaim  the  sovereign  authority 
must  forever  remain  a  theory  of  no  practical  value  to 
the  people,  particularly  as  the  dissolution  of  a  sovereign 
goi-emment  would  annihilate  the  laws  enacted  by  that 
government,  as  Mr.  Blackstone  says. 

When  the  great  council  or  Wittena-g emote  was  divided 
into  the  two  houses  of  parliament  as  they  now  exist,  his- 
torians differ,  but  Mr.  Blackstone  says :  "It  is,  how- 
ever, sufficient  to  know  that  as  early  as  the  seventeenth 
year  of  King  John,  a.  d.  12 15,  in  the  great  charter 
granted  by  that  prince,  he  promised  to  summon  all  arch- 
bishops, bishops,  abbots,  earls,  and  greater  barons  per- 

*  Blackstone,  vol.  i,  p.  162. 


ORGANIZATION   OF  THE   STATES,  ETC.  II 

sonally,  and  all  other  tenants  in  chief  under  the  crown 
by  the  sheriffs  and  bailiffs,  to  meet  at  a  certain  place, 
with  forty  days'  notice,  to  assess  aids  and  scutages  when 
necessary.  .  .  .  Since  the  year  1266  (49  Henry  III.) 
the  parliament  has  continued  to  subsist.* 

"The  parliament  has  no  fixed  time  of  meeting,  and 
can  not  assemble  without  being  called  by  the  king  ;  it  is, 
however,  provided  .  .  .  upon  the  death  of  the  king 
the  parliament  last  summoned  shall  meet  and  may  hold 
for  six  months,  t 

' '  The  parliament  consists  of  the  king  in  his  royal  ca- 
pacity and  the  three  estates  of  the  realm,  the  lords  spir- 
itual, the  lords  temporal  (who  sit  together  with  the  king 
in  one  house),  and  the  commons,  who  sit  by  themselves 
in  another  house.  The  king  and  these  three  estates  to- 
gether form  the  great  corporation,  or  body  politic  of  the 
kingdom,  of  which  the  king  is  said  to  be  caput,  prin- 
cipium  et  finis.  For  upon  their  coming  together  the 
king  meets  them,  either  in  person  or  by  representation, 
without  which  there  can  be  no  beginning  of  a  parlia- 
ment, and  he  also  alone  has  the  right  of  dissolving 
them.t 

"The  concurrence  of  all  of  the  constituent  parts  of 
the  parUament  are  necessary  to  enact  any  new  law. 
.  .  .  Whatever  is  enacted  by  one,  or  by  two  only  of 
the  three,  is  no  statute,  and  to  it  no  regard  is  due,  unless 
in  matters  relating  to  their  own  privileges."  |1 

The  power  and  jurisdiction  of  the  parliament,  Mr. 
Blackstone,  quoting  from  Sir  Edward  Coke,  says  :  "It 
hath  sovereign  and  uncontrollable  authority  in  the  mak- 
ing, confirming,  restraining,  abrogating,  repealing,  re- 
vising and  expanding  of  laws,  concerning  matters  of  all 

*  Blackstone,  vol.  i,  p.  149.         t  Id-.  P-  i50- 
%  Id.,  p.  153-  II  Id.,  p.  160. 


12  CONSTITUTION   OF   THK   UNITED   STATES. 

possible  denominations.  .  .  .  All  mischiefs  and  griev- 
ances, operations  and  remedies,  that  transcend  the  ordi- 
nary course  of  the  laws,  are  within  the  reach  of  this 
extraordinary  tribunal.  It  can  regulate  or  new  model 
the  succession  to  the  crown.  ...  It  can  change  and 
create  afresh  even  the  constitution  of  the  kingdom,  and 
of  parliament  themselves.  ...  It  can,  in  short,  do 
ever>'  thing  that  is  not  naturally  impossible. ' '  * 

It  will  be  observed  that  the  division  of  the  legislative 
department  into  two  houses  was  fully  established  by 
England  before  the  separation  of  the  colonies  from  that 
kingdom. 

The  executive  authority  was  originally  lodged  with  the 
king,  and  all  executive  powers  were  supposed  to  flow 
from  the  king,  including  all  judicial  power.  Under  that 
idea  the  king  was  regarded  as  the  fountain  of  justice : 
"not  author,  or  original,  but  the  distributor  of  justice." 
And  in  earlier  times  the  king  often  heard  and  determined 
causes  in  person  between  party  and  party. 

But  by  long  usage  the  kings  delegated  their  judicial 
powers  to  the  judges  of  the  several  courts,  until  the 
courts  attained  a  known  and  stated  jurisdiction  regulated 
by  certain  and  established  rules,  which  the  crown  itself 
could  not  alter  except  through  an  act  of  parliament. 

A  though  the  judges  had  acquired  a  certain  and  known 
jurisdiction,  they  were  still  but  the  agents  of  the  king, 
and  derived  their  powers  from  the  king  as  the  chief 
source  of  all  executive  authority,  and  their  terms  of 
office  expired  with  the  death  of  the  king  who  appointed 
them. 

But  by  statute  of  i  George  III.,  c.  23,  it  was  enacted  at 
the  request  of  the  king  that  "the  judges  be  continued  in 
their  offices  during  their  good  behavior  notwithstanding 


*  Blackstone,  vol.  i,  pp.  160-61. 


ORGANIZATION    OF    THE    STATES,    ETC.  1 3 

any  demise  of  the  crown"  (which  was  formerly  held,  im- 
mediately to  vacate  their  seats) ,  and  their  salaries  are  ab- 
solutely secured  to  them  during  the  continuance  of  their 
commissions.* 

This  statute  completed  the  liberation  of  the  judiciary 
from  the  king,  and  the  construction  of  it  into  a  separate 
and  independent  department  of  the  government  of  that 
kingdom. 

As  the  commissions  of  the  judges  extended  only 
through  good  behavior,  they  would  necessarily  be  sub- 
ject to  removal  whenever  their  behavior  should  cease  to  be 
good.  But  to  impeach  them  they  must  be  convicted  of 
some  willful  misbehavior  ;  a  mere  mal-interpretation  of 
the  laws,  or  of  the  constitution,  would  be  no  cause  of 
impeachment ;  still  a  mal-interpretation  of  the  constitu- 
tion might  have  the  effect  of  changing  the  character  of 
the  whole  system  of  government. 

To  guard  against  such  a  calamity,  it  was  provided  in 
the  constitution  of  that  kingdom  that  the  judges  should 
be  removable  upon  the  address  of  two-thirds  of  each 
house  of  parliament.  Hence,  while  the  judiciar>'  was 
removed  from  ever>'  influence  of  the  king  by  said  act  of 
I  George  III.,  c.  23,  they  were  still  subject  to  the  power 
of  the  people,  who  could  elect  a  parliament  to  address  an 
offending  judge  out  of  office,  whenever  he  betrayed  a  dis- 
position to  so  interpret  the  constitution,  as  to  change  the 
character  of  the  government.  The  mere  existence  of  this 
power  in  the  people  has  caused  the  judiciary  of  that  realm 
to  guard  with  scrupulous  care  the  reserved  rights  of  the 
people. 

The  exact  date  the  county  courts  were  established  in 
England  is  not  known,  but  mention  is  made  of  them  as 


*Blackstone.  vol.  i,  pp.  266-67. 


14  CONSTITUTION   OP   THE  UNITED   STATES. 

early  as  the  reign  of  Ina,  during  the  continuance  of  the 
Heptarchy.  * 

And  the  incorporated  city  is  of  ancient  origin.  So 
that,  we  drew  from   England — 

First,  the  separation  of  the  law  making  power  from 
the  executive  power. 

Second,  the  division  of  the  legislative,  or  law  making 
power,  into  two  houses,  requiring  a  concurrence  of  each 
house  with  the  other  to  enact  any  law. 

Third,  the  division  of  the  executive  into  two  depart- 
ments ;  that  is,  carving  the  judiciary  out  of  the  execu- 
tive, and  constituting  it  into  a  separate  department  of 
government. 

Fourth,  the  division  of  the  nation  into  counties,  as 
parts  of  the  state,  to  aid  in  the  enforcement  of  the  laws. 

Fifth,  the  subdivision  of  counties  into  villages,  town- 
ships, shires,  and  incorporated  cities  and  towns. 

But  as,  up  to  the  establishment  of  the  American  system, 
it  was  thought  that  every  government  however  consti- 
tuted, must  be  vested  with  sovereign  authority  (unless  in 
cases  of  incorporated  cities  and  colonies,  for  every  charter 
presupposes  a  superior),  and  sovereignty  being  the  su- 
preme authority,  that  superior  could  not  vest  a  city  or 
colony  chartered  by  it  with  sovereignty,  without  destroy- 
ing its  own  sovereignty  ;  so  that  the  city  or  colony  char- 
tered by  it  always  acts  as  the  agent  of  the  sovereign 
nation  in  exercising  sovereign  authority,  and  in  doing 
sovereign  acts,  and  must  continually  draw  its  life  and 
existence  from  the  sovereign  authority  that  granted  the 
charter ;  and  whenever  that  sovereign  nation  ceases  to 
exist,  it  will  have  no  life  left  to  continue  to  infuse  into  a 
city  or  colony  it  may  have  chartered. 

In  the  event  of  the  nation  granting  the  charter  ceasing 


*Hallam's  Middle  Ages,  p.  320. 


ORGANIZATION   OF   THE   STATES,    ETC.  1 5 

to  exist,  the  sovereignty  of  the  colony  would  devolve  on 
the  people  thereof,  or  on  the  family  governments,  which, 
if  of  divine  origin,  must  always  exist  independently  of 
any  government  established  by  man. 

There  was  no  danger  of  the  sovereign  nation  of  En- 
gland ceasing  to  exist ;  but  that  nation  was  threatening 
to  revoke  the  charters  of  the  colonies,  and  to  put  the 
colonies  under  special  parliamentary  laws,  as  provinces, 
which  would  have  severed  the  connection  between  the 
colonies  (as  colonies)  and  that  nation,  and  they  would 
have  a  perfect  right  to  resist  any  effort  on  England's  part 
to  reduce  them  to  provinces. 

By  the  terms  of  the  respective  colonial  charters,  they 
w'ere  vested  with  jurisdiction  of  the  ci\'il  laws  only, 
England  retaining  in  itself  exclusive  jurisdiction  of  the 
political  laws  and  sovereign  authority.  To  give  a  clearer 
conception  of  the  respective  jurisdictions  of  the  colonies 
and  of  England,  I  will  call  attention  to  the  fact  that 
there  are  but  two  grand  objects  of  government,  to  wit : 
The  main  object  is  to  provide  a  government  for  the  peo- 
ple, sufficient  to  protect  them  in  the  regulation  of  their 
property  and  religious  rights,  and  a  police  management 
for  their  safety  and  pursuit  of  happiness,  which  is  called 
civil  laws.  The  political  laws  include  the  organization 
of  the  government,  its  powers  and  the  mode  of  exercising 
the  same  for  the  general  welfare  of  the  government  itself  ; 
and  as  the  government,  or  the  agent  having  jurisdiction 
of  political  laws,  is  the  only  organ  through  which  the 
nation  contracts  and  maintains  treaties,  or  can  carr>"  on 
intercourse  with  foreign  nations,  it  must  have  control  of 
all  of  the  forces  of  the  nation.  And  every  complete 
government  must  have  control,  not  only  of  the  forces  of 
the  nation,  but  the  people  thereof,  and  the  making  of  the 
civil  laws  for  their  welfare. 

As  before  stated,  the  jurisdiction  of  the  colonies  was 


1 6  CONSTITUTION   OF   THE   UNITED   STATES. 

limited  to  the  civil  laws  only,  though  with  that  limited 
jurisdiction  their  colonial  governments  were  satisfactory 
to  the  people,  and  they  did  not  desire  to  change  their 
home  or  state  government  in  their  respective  colonies. 
But  as  their  corporate  colonial  governments  could  not  be 
continued  without  a  superior,  and  as  their  mother  coun- 
try (Great  Britain)  was  threatening  to  desert  them, 
the  colonists  were  not  willing  to  entrust  the  sovereignty 
and  the  political  laws  thereof  to  any  other  government, 
so  the  people  resolved  to  retain  the  sovereignty  in 
themselves.  But  history  failed  to  point  out  to  them 
forms  of  government,  or  any  system  of  governmental 
agencies,  by  which  they  could  retain  the  sovereignty  in 
themselves  and  at  the  same  time  continue  the  subjects 
of  themselves. 

However,  beyond  the  history  of  governments  formed 
by  man,  they  found  that  the  Di\ane  Ruler  of  the 
universe  had  shown  the  way  by  which  the  sovereign 
could  continue  to  be  sovereign,  and  also  constitute  sub- 
jects of  that  sovereign  authority,  by  placing  the  world 
under  a  reign  of  laws  by  which  He  chose  to  abide  as 
long  as  He  permitted  those  laws  to  stand,  without  sur- 
rendering His  sovereign  authority,  or  power,  to  change 
those  laws  at  will.  And  the  folk  mote  or  war  host  of 
their  English  ancestors  taught  them  how  to  provide  a 
separate  assembly  through  which  to  express  their  will  as 
sovereigns,  other  than  that  provided  for  them  to  express 
their  will  as  subjects  ;  and  they  boldly  resolved  to  introduce 
this  new  principle  of  science  in  government  in  their  sys- 
tem for  the  American  states,  and  to  retain  the  entire 
sovereign  authority  in  themselves,  and  make  themselves 
the  subjects  of  whatever  government  they  might  estab- 
lish for  themselves. 

The  Colony  of  Virginia  leading  off  by  its  bill  of 
rights  on  the  12th  of  June,  1776,  and  its  constitution  on 


ORGANIZATION   OF   THE   STATES,  ETC.  1 7 

the  29th  of  June,  1776,  declared  that  the  officers  of  the 
government  thereof  were  but  agents,  trustees,  and  pub- 
He  ser\^ants  ;  and  also  provided  for  calling  conventions  to 
alter,  amend,  or  abolish  the  constitution,  or  plan  of  gov- 
ernment, then  being  established. 

That  government,  being  but  an  inanimate  entity,  could 
do  nothing  except  by  and  through  its  officers  ;  conse- 
quently the  government  itself  must  be  but  a  trustee  and 
agent.  But  as  one  may  be  vested  with  a  naked  trust, 
which  is  revocable  at  any  time  by  the  grantor,  or  he  may 
be  vested  with  a  trust  coupled  with  an  interest,  which 
interest  may  be  sufficient  to  prevent  a  revocation  thereof 
until  the  trustee  be  compensated  for  his  interest,  so  a 
government  may  be  simply  an  agent  and  trustee  (as  is 
the  case  with  municipal  corporations),  or  it  maybe  an 
agent  and  trustee  vested  with  an  interest  in  the  sovereign 
authority.  However,  as  sovereignty  is  supreme  it  can 
neither  be  limited  nor  divided  ;  therefore,  if  the  govern- 
ment be  vested  with  any  part  of  that  authority  by  its 
organization,  it  must  necessarily  have  the  whole  sov- 
ereign authority,  and  in  that  event  the  only  way  to  get 
that  authority  out  of  the  government  would  be  by  a  for- 
feiture of  it  by  the  malconduct  of  the  officials,  or  by 
forcible  seizure  of  it  by  the  people  in  a  revolution. 

But,  as  was  thought  at  that  time,  ever>'  government 
must  possess  sovereignty  within  itself,  to  enable  it  to  ex- 
ercise that  power,  the  language  used  in  the  Virginia  con- 
stitution and  bill  of  rights  ma}'  have  been  thought  insuf- 
ficient to  reser\^e  that  authority  out  of  the  government  of 
that  state.  However,  when  the  fact  that  the  people  re- 
serv' ed  to  themselves  the  power  to  call  a  convention  to  alter 
or  amend  their  constitution  is  considered,  in  conjunction 
with  the  declaration  in  said  bill  of  rights  and  constitu- 
tion, it  appears  sufficient,  to  reser\'e  the  entire  sovereign 
authority  to  the  people  of  that  state.     The  further  fact 


1 8  CONSTITUTION   OF   THK   UNITED   STATES. 

that  the  government  then  ordained  and  established 
should  forever  remain,  until  altered  or  amended  by  the 
people,  in  sovereign  convention  assembled,  thereby  con- 
stituted the  sovereign  convention,  as  the  only  organ 
through  which  to  express  their  sovereign  will. 

Therefore,  whatever  may  be  done  in  the  waj^  of  mak- 
ing or  changing  laws,  or  of  governing  the  people,  through 
the  governraent,  or  any  of  its  departments,  or  ofl&cers, 
could  not  be  regarded  as  sove^'eign  acts  or  of  sovereig7i  au- 
thority. But  should  the  constitution  and  bill  of  rights 
of  Virginia  be  held  insufl&cient  to  fully  set  forth  the  great 
American  discovery  in  the  science  of  government,  the 
great  Declaration  of  Independence  proclaimed  the  Fourth 
of  July,  1776,  clearly  sets  forth  that  the  right  of  life, 
liberty  and  the  pursuit  of  happiness,  are  inalienable 
rights  ;  and  that  whenever  the  government  fails  to  pro- 
tect these  rights,  the  people  have  the  right  to  alter  or 
abolish  the  same,  and  to  institute  a  new  government, 
laying  its  foundation  on  such  principles  and  organizing  it 
in  such  form  as  to  them  shall  seem  most  likely  to  effect  their 
safety  and  happiness.  But  if  the  Virginia  constitution  and 
bill  of  rights  fail  to  fully  declare  the  American  principles, 
this  great  declaration  also  falls  short  of  doing  so. 

Most  of  the  states  failed  to  establish  a  constitution 
until  after  said  declaration  had  been  proclaimed,  and 
many  of  them  failed  to  construct  a  constitution  and  bill 
of  rights  until  after  the  Articles  of  Confederation  for  the 
union  had  been  agreed  to  by  the  congress,  and  ratified  by 
all  of  the  states.  And  nearly  all  of  the  states  that  adopted 
their  respective  constitutions,  after  the  debates  on  the 
Articles  of  Confederation  in  the  congress,  and  in  the 
legislatures  of  the  states,  in  ratifying  the  same,  in  some 
form  of  language,  either  in  its  constitution  or  bill  of 
rights,  declared  that  the  sovereign  authority,  or  all  gov- 


ORGANIZATION    OF    THE    STATES,    ETC.  1 9 

ernmental  powers,  emanated  from  the  people  and  were 
inalienable  from  them. 

As  long  as  this  sovereign  power  is  inalienable  from  the 
people,  it  can  not  vest  in  the  government ;  therefore,  the 
declaration  of  Virginia,  as  well  as  other  states,  must  be 
accepted  as  a  positive  reservation  of  this  power,  out  of 
the  government,  and  a  retention  of  it,  in  the  people. 

Our  colonial  ancestors  were  aware  of  the  diflBculty  of 
providing  for  the  preserv^ation  of  the  principles  upon 
which  the  government  might  be  originally  founded  ;  for 
they  knew  of  the  contention  b)'  philosophical  writers  on 
the  subject,  that  governments  had  generally  been  founded 
in  compact,  whereby  the  reserved  rights  of  the  people 
had  been  apparently  well  guarded  ;  but,  by  gradual 
usurpation,  arising  out  of  interpreted  powers,  seem- 
ingly innocent  at  the  time,  which  performed  the  func- 
tion of  precedent,  to  lead  to  other  and  more  dangerous 
encroachments,  until  ever>'  reserv^ed  right  of  the  people 
had  been  absorbed  by  the  government.  However, 
Mr.  Blackstone  denies  that  governments  were  formed 
in  compact ;  on  the  contrary,  he  claims  that  they  were 
always  the  result  of  growth  ;  but  it  is  not  material 
how  they  were  originally  established,  for  in  their  earlier 
existence  the  ofl&cials  w'ould  have  less  power  to  impose 
on  the  people  than  they  have  after  the  government 
itself  grows  richer  and  stronger  than  its  inhabitants. 
But  whatever  ma}'  have  been  the  origin  of  govern- 
ments before  the  American  system  was  established,  our 
colonial  ancestors  were  then  engaged  in  establishing 
a  system  of  government  in  compact,  and  to  introduce 
new  principles  in  the  science  of  government,  and  were 
extremely  anxious  to  guard  the  new  system  ' '  of  retaining 
the  sovereignty  in  the  people. ' ' 

They  were  familiar  with  the  advantages  of  dividing 


20  CONSTITUTION   OF    THE   UNITED   STATES. 

the  powers  of  government  between  three  co-ordinate  de- 
partments, and  putting  each  under  the  management  of  a 
different  set  of  ofl&cials.  They  were  also  famiUar  with 
the  fact  that  the  grand  attributes  or  objects  of  govern- 
ment could  be  separated,  and  each  of  them  committed  to 
a  separate  government,  as  the  colonists  had  seen  and 
tried,  in  the  cases  of  their  colonial  governments  under 
their  British  charters,  with  jurisdiction  of  the  civil  laws 
only,  in  the  colonies,  while  England  retained  exclusive 
jurisdiction  of  the  political  laws  and  the  entire  sovereign 
authority,  though  granting  limited  jurisdiction  to  the 
colonies  to  wield  such  sovereign  forces  as  were  necessary 
to  enable  them  to  carry  into  effect  the  trusts  and  duties 
imposed  on  them  as  municipal  agents  of  England. 

This  new  development  in  the  science  of  government 
not  only  required  the  separation  of  jurisdiction  of  the 
civil  laws  from  jurisdiction  of  the  political  laws,  but 
also  required  a  limitation  on  the  exercise  of  jurisdiction 
of  the  political  laws  ;  for  wherever  jurisdiction  of  the 
political  laws  might  be  lodged,  the  whole  forces  of  the 
country,  needed  for  public  defense,  must  also  be  lodged, 
and  the  danger  of  that  jurisdiction  absorbing  the  reserved 
powers  of  the  people  made  it  necessary  to  impose  limits 
and  enforcible  checks.  Consequently,  it  was  necessary 
to  construct  two  governmental  corporations,  the  one  to 
be  vested  with  jurisdiction  of  the  political  laws,  and  the 
other  to  be  vested  with  jurisdiction  of  the  civil  laws,  the 
jurisdiction  of  each  to  be  exclusive  as  to  the  objects 
and  governmental  functions  committed  to  it ;  and  as  the 
jurisdiction  of  each  necessarily  had  to  extend  over 
the  same  territory  and  the  same  people,  who  were 
to  constitute  the  union,  there  was  no  way  to  define 
the  boundar>'  of  each  jurisdiction,  except  to  divide  the 
whole  territory  into  fractional  or  component  parts,  and 
to  give  to  each  fraction  jurisdiction  of  one  of  the  great 


ORGANIZATION    OF    THE   STATES,  ETC.  21 

objects  of  government,  to  the  extent  of  its  boundary, 
which  would  necessarily  subdivide  the  jurisdiction  of 
that  object  between  the  different  parts. 

As  the  political  laws  relate  to  the  government  itself, 
and  its  maintenance  against  either  foreign  or  domestic 
foes,  and  in  its  relations  with  foreign  nations,  it  must 
have  control  of  all  the  forces  of  the  whole  country.  Ju- 
risdiction of  the  political  laws,  therefore,  must  be  given 
to  the  corporation  of  the  Union,  and  jurisdiction  of  the 
civil  laws  to  the  states,  or  fractional  parts  of  the  country, 
or  union. 

The  states  had  existed  as  colonies  having  jurisdiction 
of  the  civil  laws  only,  under  their  British  charters,  which 
was  satisfactory  to  the  people  ;  and  they  did  not  desire 
any  greater  jurisdiction  for  their  states  under  the  new 
system,  nor  did  they  desire  any  change  in  the  boundaries 
of  their  respective  colonies  or  states ;  they  therefore 
retained  their  respective  colonies  to  constitute  the  divi- 
sion of  the  country  to  mark  the  boundary  of  the  juris- 
diction of  one  of  the  objects  of  government.  By  divid- 
ing the  jurisdiction  of  the  objects  of  government  was 
the  only  w^ay  the  people  could  have  secured  the  sovereign 
authority  in  themselves  absolutely ;  for  had  the  sov- 
ereignty been  vested  in  the  American  people  as  one  peo- 
ple, the  people  of  the  states  could  not  have  been  vested 
with  it,  but  it  must  abide  in  the  people  of  the  union, 
and  there  was  great  apprehension  of  the  governmental 
agency  of  the  union  gradually  absorbing  the  sovereign 
authority  from  the  people,  by  usurping  powers  appar- 
ently innocent  at  the  time,  but  to  serve  as  precedents 
to  enable  them  to  revolutionize  the  entire  system  of 
government,  as  history  showed  had  so  often  been 
done  in  former  free  governments,  apparently  well 
guarded  against  the  ambition  of  their  ofi&cials.  There 
was    no    danger    of    that    character  of    usurpation    to 


22  CONSTITUTION   OF   THE   UNITED   STATES. 

come  from  the  state  officials  as  long  as  jurisdiction  of  the 
political  laws  continued  to  reside  in  the  governmental 
agency  of  the  union,  and  the  main  inducement  for  sep- 
arating the  two  great  objects  of  government,  so  as  to 
put  them  under  the  control  of  two  separate  jurisdictions, 
was  to  guard  against  all  danger  of  losing  their  sovereign 
control  of  either  of  said  governments,  as  it  required 
both  to  constitute  a  complete  government. 

As  each  state  is  vested  with  exclusive  jurisdiction  of 
the  civil  laws  (with  a  few  specified  exceptions)  and  ex- 
cluded from  jurisdiction  of  the  political  laws,  the  gov- 
ernmental agency  for  the  union  must  constitute  a  part 
of  that  of  each  state  individually  ;  and  as  the  agency  of 
the  federal  union  was  vested  with  exclusive  jurisdiction 
of  the  political  laws,  and  (in  the  main)  excluded  from 
jurisdiction  of  the  civil  laws,  each  state  individually 
must  constitute  a  part  of  the  governmental  agency  for 
the  federal  union,  so  that  each  must  constitute  a  part  of 
the  other. 

As  neither  the  federal  union  nor  the  states  have  juris- 
diction of  both  of  the  necessary  objects  of  government, 
to  constitute  government,  neither  can  be  sovereign,  and 
each  must  be  a  mere  municipal  or  corporate  agent  of 
some  higher  authority.  Consequently  the  United  States, 
as  well  as  the  several  states,  must  constitute  a  mere 
agent  of  that  higher  authority,  and  bear  the  same  rela- 
tion to  that  higher  authority  that  municipal  corporations 
bear  to  the  state  or  nation  that  granted  the  charter. 

As  the  people  of  the  respective  colonies  granted  the 
charters  of  their  respective  states,  wherein  they  reserved 
to  themselves  the  entire  sovereign  authority,  the  states 
constitute  municipal  corporations,  deriving  their  respect- 
ive existence  and  powers  from  the  people. 

And  as  the  Articles  of  Confederation  were  constructed 
by  the  Colonial  Congress,  composed  of  representatives 


ORGANIZATION    OF   THE    STATES,  ETC.  23 

from  each  colony,  and  had  to  be  ratified  by  the  legisla- 
tures of  the  several  states  to  make  it  valid  and  binding 
(the  legislatures  being  mere  agents  of  the  people),  the 
ratification  by  the  legislatures  of  the  states  was  in  law 
the  ratification  of  the  people  of  the  states.  Hence  the 
confederation  could  not  have  been  more  than  a  municipal 
corporation,  deriving  its  existence  and  authority  from 
the  concurrent  act  of  the  people  of  all  of  the  states. 

These  three  great  principles,  to  wit :  First,  the  dis- 
covery- of  a  mode  by  which  the  people  could  retain  the 
entire  sovereign  authority  in  themselves,  and  at  the  same 
time  make  themselves  subjects  of  a  government  deriving 
its  entire  authority  from  themselves  ;  second,  how  a  peo- 
ple may  govern  themselves  through  municipal  corpora- 
tions constituted  by  themselves,  with  power  to  revoke 
the  same  at  will ;  third,  how  to  separate  the  powers  that 
belong  respectively  to  each  of  the  two  grand  divisions  of 
government,  and  to  commit  the  execution  of  each  to  a 
separate  government,  or  municipal  agent,  are  of  Amer- 
ican origin  ;  and  when  coupled  with  the  guards  to  ab- 
solute religious  freedom,  at  least,  excuses  the  idea  of 
the  inspiration  of  our  revolutionarj'  fathers,  so  often 
claimed  in  the  pulpit  and  Fourth  of  July  orations,  as 
a  fulfillment  of  the  Lord's  promise  to  put  the  new  laws 
in  the  minds  of  the  people  and  write  them  in  their 
hearts.* 

These  great  American  principles  were  not  only  put 
into  the  minds  of  our  colonial  ancestors  by  existing  cir- 
cumstances, but  they  were  written  in  their  hearts  in  the 
blood  of  a  fierce  war,  cruelly  and  unjustly  waged  against 
them  by  the  most  powerful  nation  of  that  age. 

The  events  and  circumstances  connected  with  the  or- 


St.  Paul's  Epistle  to  the  Hebrews,  vii,  viii,  ix. 


24  CONSTITUTION    OF    THK   UNITED    STATKS. 

ganization  of  the  governments  of  the  several  states,  and 
the  government  of  the  confederacy  tmder  the  articles  of 
confederation,  will  show  that  they  were  constructed 
about  the  same  time,  as  parts  of  each  other,  on  the  prin- 
ciples above  stated. 

The  Colonial  Congress,  by  resolution  adopted,  the  loth 
of  May,  1776,  advised  the  colonies,  "where  no  govern- 
ment sufficient  to  the  exigencies  of  their  affairs  had  been 
established  to  adopt  such  a  government  as  should,  in  the 
opinion  of  the  representatives  of  the  people,  best  conduce 
to  the  happiness  and  safety  of  their  constituents  in  par- 
ticular and  of  America  in  general. ' '  * 

On  the  loth  of  June  a  committee  was  appointed  by  that 
congress  to  draft  a  Declaration  of  Independence.  That 
committee  consisted  of  five  members  chosen  in  the  fol- 
lowing order,  Mr.  Jefferson,  Mr.  J.  Adams,  Mr.  Franklin, 
Mr.  Sherman  and  Mr.  R.  R.  Livingston.  The  committee 
requested  Mr.  Jefferson  to  draft  that  instrument,  and 
after  drafting  it  he  submitted  it  to  his  said  committee, 
and  they  agreed  to  it ;  it  was  then  reported  to  the  con- 
vention on  the  28th  of  June  ;  but  it  was  thought  that  the 
states  of  New  York,  New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland  and  South  Carolina  were  not  ready  to 
take  so  serious  and  advanced  a  step,  and  by  request  it 
was  agreed  to  postpone  its  consideration  until  the  ist  of 

July,  t 

On  the  I  St  of  July,  1776,  said  report  was  taken  up  and 
earnestly  debated  until  late  in  the  afternoon  session  of 
the  4th  of  July,  1776.  The  Declaration  of  Independence 
was  considered  in  connection  with  the  motion  of  the 
members  from  Virginia  to  "declare  the  colonies  free 
states ; "  the  latter  was  agreed  to  first  by  a  majority  of 


*  Elliott's  Debates,  vol.  i,  pp.  54-5-  t  Id.,  p.  59. 


ORGANIZATION    OF   THE    STATES,    ETC.  25 

the  States,  and  the  former  was  agreed  to  and  passed  late 
in  the  evening  of  that  day,  and  signed  by  the  delegates 
from  each  of  the  states,  except  the  delegates  from  the 
state  of  New  York  who  said  that  they  were  individually 
in  favor  of  it,  but  thought  that  their  instructions,  which 
had  been  given  more  than  a  year  before,  did  not  authorize 
them  to  sign  it.  The  great  Declaration  of  Independence 
was,  however,  proclaimed  on  the  evening  of  the  4th  of 
July,  1776,  without  the  signature  of  New  York;  how- 
ever, that  state  at  once  authorized  its  delegates  to  ratify 
it,  and  they  signed  the  great  Declaration  on  the  9th  of 
July,  1776. 

On  the  nth  of  June  a  resolution  was  passed  to  appoint 
a  committee  to  prepare  and  digest  the  form  of  the  con- 
federation to  be  entered  into  between  the  colonies.  *  On 
the  day  following  that  committee  was  appointed  consist- 
ing of  the  following  persons,  to-wit :  Mr.  Bartlett,  Mr.  S. 
Adams,  Mr.  Hopkins,  Mr.  Sherman,  Mr.  R.  R.  Living- 
ston, Mr.  Dickinson,  Mr.  McKeen,  Mr.  Stone,  Mr.  Nel- 
son, Mr.  Hewes,  Mr.  Rutledge  and  Mr.  Guinnett.  Upon 
the  report  of  the  committee  the  subject  was  from  time  to 
time  debated  until  the  15th  of  November,  1777,  when  a 
copy  of  the  Articles  of  Confederation  being  made  out,  and 
sundry  amendments  made  in  the  diction  without  altering 
the  sense,  the  same  was  agreed  to  and  it  was  then  sent  to 
the  legislatures  of  the  states  for  ratification. 

The  Articles  of  Confederation  were  ratified  by  the  states 
in  the  following  order  of  time  by  their  respective  repre- 
sentatives in  the  congress,  after  being  first  authorized  to 
do  so  by  their  respective  state  legislatures: 

Connecticut,  New  York,  Massachusetts,  Pennsylvania, 

*  Elliott's  Debates,  vol.  i,  p.  55. 


26  CONSTITUTION   OP   THE   UNITED   STATES. 

South  Carolina  and  Virginia,  ratified  the  same  on  the 
gth  of  July,  1778  ;  Delaware  (in  part)  on  same  day,  but 
not  fully  until  the  5th  of  May,  1779.  North  Carolina 
(in  part)  ratified  the  same  on  said  9th  of  July,  and  com- 
pleted its  ratification  on  the  21st  of  July,  1778.  Georgia 
ratified  the  same  the  24th  of  July,  1778  ;  New  Hamp- 
shire (in  part),  July  9,  1778,  and  completed  its  ratifica- 
tion in  August,  1778.  New  Jersey  (in  part)  ratified  the 
same  July  9,  1778,  and  completed  its  ratification  in  No- 
vember, 1778.  And  Maryland  ratified  the  same  on  the 
ist  of  March,  1781,  which  included  all  of  the  states  ex- 
cept Rhode  Island  ;  and  on  the  next  day  (March  2,  1781) 
the  members  of  the  Colonial  Congress  were  sworn  in  as 
members  of  the  congress  of  the  confederation. 

New  Jersey,  Delaware  and  Mar>dand,  being  hemmed 
in  on  their  western  boundaries,  while  other  states  had 
large  surplus  territory  on  their  western  border  (some  of 
them  claimed  to  extend  to  the  Pacific  ocean),  which  ex- 
cited the  jealousy  of  these  three  states,  and  they  each 
declined  to  ratify  the  Articles  of  Confederation,  in  hopes 
of  inducing  the  other  states  to  give  up  their  surplus  ter- 
ritory to  be  used  for  the  common  interest  of  all,  in  pay- 
ing the  war  debt.  New  Jersey  and  Delaware,  however, 
fell  in  and  ratified  the  confederation  without  any  pledge 
to  so  appropriate  said  surplus  territory  ;  but  Maryland 
held  back  until  Virginia  agreed  to  surrender  her  territory 
on  the  north-west  of  the  Ohio,  by  resolution  of  her  leg- 
islature in  January,  1 78 1. 

While  this  activity  in  the  construction  of  the  confed- 
eration was  going  on,  the  colonies  were  equally  as  active 
in  forming  their  respective  state  governments.  Several 
of  the  colonies,  however,  had  taken  steps  toward  the 
formation  of  governments  for  themselves  before  the 
Declaration   of    Independence  was    proclaimed    by   the 


ORGANIZATION    OF   THE    STATES,   ETC.  27 

Colonial  Congress,  and  indeed  before  the  resolution  of 
the  loth  of  May,  advising  them  to  form  separate  gov- 
ernments for  themselves,  respectively,  to-wit : 

North  Carolina,  by  its  Mecklenburg  convention,  which 
met  the  20th  of  May,  1775. 

New  Hampshire,  by  its  congress,  on  the  5th  of  Janu- 
ary, 1776. 

South  Carolina,  by  its  legislature,  constructed  and  de- 
clared for  itself  a  free  and  independent  government,  the 
26th  of  March,  1776. 

Virginia,  by  a  house  of  burgesses  chosen  for  the  pur- 
pose, met  on  the  6th  of  May,  1776. 

New  Jersey,  by  a  convention  that  met  the  26th  of  May, 
1776. 

Each  of  the  other  colonies  met  for  the  purpose  of  form- 
ing separate  governments  after  the  Declaration  of  Inde- 
pendence had  been  proclaimed,  except  Rhode  Island, 
which  did  not  form  a  new  government  until  in  1842,  and 
Connecticut,  which  adopted  its  British  charter  as  its 
constitution. 

North  Carolina  failed  to  carry'  out  its  Mecklenburg 
form  of  government,  however,  and  by  a  congress  elected 
for  the  purpose,  which  assembled  in  Halifax  on  the  12th 
of  November,  1776,  constructed  a  permanent  form  of 
government,  and  proclaimed  the  same  on  the  i8th  of 
December,  1776. 

New  Hampshire' s  first  constitution  was  constructed  by 
its  congress  on  the  5th  of  January,  1776,  but  it  was  in- 
tended as  a  provisional  government,  and  was  to  last  only 
until  matters  could  be  adjusted  with  England,  and  on 
the  loth  of  June,  1776,  a  convention  of  delegates  chosen 
by  the  people  met  at  Concord,  and  constructed  another 
constitution,  which  was  submitted  to  the  people  and  re- 
jected  by   them ;    another   set   of    delegates  were   then 


28  CONSTITUTION   OF   THK  UNITKD   STATES. 

chosen,  who  met  at  Exeter  the  12th  of  June,  1781,  and 
they  formed  a  constitution  and  submitted  it  to  a  vote  of 
the  people  at  their  town  meetings,  with  authority  in  said 
town  meetings  to  propose  amendments  ;  this  constitution 
was  adopted  by  the  people,  but  not  in  time  to  go  into  effect 
until  the  2d  of  June,  1784. 

The  first  constitution  of  South  Carolina  was  constructed 
and  adopted  by  its  legislature  on  the  26th  of  March, 
1776,  which  was  amended  by  the  legislature  on  the  19th 
of  March,  1778  ;  the  supreme  court  of  that  state  holding 
that  both  of  said  constitutions,  being  the  work  of  the 
legislature,  were  but  legislative  acts,  and  that  they  could 
be  changed  by  the  legislature  of  that  state  ;  thereupon  a 
convention  was  called,  the  delegates  to  which  were  chosen 
by  the  people,  which  met  at  Columbia  and  constructed 
another  constitution,  and  proclaimed  the  same  on  the  3d 
of  June,  1790,  without  submitting  the  same  to  the  people 
for  ratification. 

New  Jersey  called  its  convention  to  construct  its  con- 
stitution, and  the  convention  held  its  session  with  closed 
doors  successively  at  Burlington,  Trenton,  and  New 
Brunswick,  from  the  26th  of  May  to  the  3d  of  July,  1776, 
at  which  time  it  completed  its  labors  and  proclaimed  the 
constitution  for  that  state. 

Virginia's  house  of  burgesses,  which  constructed  the 
bill  of  rights  and  constitution  of  that  state,  was  elected 
for  that  purpose,  and  in  order  to  hold  the  sessions  thereof 
the  members  were  compelled  to  drive  back  the  British 
forces  under  Lord  Dunmore  (the  then  governor  of  that 
colony);  only  forty-five  of  the  members  took  part  in  the 
labors.  The  house  of  burgesses  being  as  much  a  part  of 
the  piachinery  of  government  of  that  colony  imder  its 
British  charter  as  the  governor  was,   and  the  object  of 


ORGANIZATION    OF    THE    STATES,    ETC.  29 

that  house  being  to  dissolve  all  connection  between  that 
colony  and  Great  Britain  (although  the  sovereign  author- 
ity may  have  been  in  the  people  of  that  colony  at  that 
time),  by  the  use  of  the  house  of  burgesses  to  effect  that 
dissolution  was  using  a  recognized  agent  of  the  sovereign 
nation  of  England  ;  so  that,  although  it  may  have  been 
treason  on  the  part  of  each  individual  delegate  who  took 
part  therein,  yet  the  bill  of  rights  and  constitution  being 
constructed  and  proclaimed  by  the  principal  arm  of  the 
corporate  government,  gave  them  the  apparent  sanction 
of  law  under  English  authority. 

The  bill  of  rights  constructed  by  that  body  of  free, 
thinking  men  will  compare  favorably  with  any  state  paper 
of  that  or  any  other  age  ;  and  the  principles  of  free  gov- 
ernment declared  therein  so  closely  resemble  those  con- 
tained in  the  great  Declaration  of  Independence  as  to 
cause  some  to  suppose  that  Mr.  Jefferson  had  a  hand  in 
preparing  the  same,  or  that  he  copied  from  it  in  drafting 
the  Declaration.  The  bill  of  rights  having  been  pub- 
lished the  day  after  the  committee  was  appointed  to  draft 
the  Declaration  of  Independence,  and  it  was  some  fifteen 
days  before  the  committee  reported,  Mr.  Jefferson,  there- 
fore, had  the  benefit  of  reading  the  bill  of  rights  before 
drafting  the  great  Declaration  ;  but  that  instrument  is  in 
language  so  strongly  resembling  the  peculiar  style  of 
Mr.  Jefferson,  while  the  language  of  the  bill  of  rights 
differs  so  widely  from  that  peculiar  style,  makes  it  quite 
clear  that  the  bill  of  rights  was  drafted  by  some  other 
person  or  persons. 

Delaware,  by  a  convention  chosen  for  that  purpose, 
constructed  and  proclaimed  a  constitution  for  that  state 
on  the  2 1  St  of  September,  1776. 

Georgia,  by  a  convention  of  delegates  chosen  for  that 
purpose,  which   met   on   the  ist   of   October,  1776,  con- 


30  CONSTITUTION    OF   THK   UNITKD    STATES. 

structed  and  proclaimed  a  constitution  for  that  state  on 
the  5th  of  February,  1777. 

Maryland,  by  a  convention  of  delegates  chosen  for  that 
purpose,  met  on  the  14th  of  August,  1776,  constructed  a 
constitution  for  that  state  and  submitted  the  same  to  the 
people  on  the  nth  of  November,  1776,  which  was  duly 
ratified. 

Massachusetts,  by  its  general  court,  constructed  a  con- 
stitution for  that  state  ;  but  that  constitution  was  rejected 
by  the  people.  Then  by  a  convention  of  delegates  chosen 
by  the  people  for  that  purpose,  which  met  at  Boston  on 
the  first  day  of  September,  1779,  another  constitution  for 
that  state  was  constructed,  and,  on  the  second  day  of 
March,  1780,  submitted  to  the  people,  who  duly  ratified 
the  same. 

New  York,  b^  a  convention  of  delegates  chosen  by 
the  people  for  that  purpose,  met  at  White  Plains,  July 
4,  1776,  but  being  molested  by  British  forces  adjourned, 
and  after  repeated  adjournments  and  meetings  in  differ- 
ent places  in  that  state,  finally  completed  its  labors  at 
Kingston,  April  20,  1777,  and  submitted  the  same  to  the 
people  who  duly  ratified  it. 

Pennsylvania,  by  a  convention  of  delegates  chosen  by 
the  people  for  that  purpose,  who  met  in  Philadelphia  on 
the  15th  of  July,  1776,  constructed  a  constitution  for  that 
state,  and  on  the  28th  of  September,  1776,  proclaimed 
the  same  without  submitting  it  to  the  people  for  ratifica- 
tion. 

Connecticut,  during  the  early  part  of  the  summer  of 
1776,  adopted  its  British  charter  as  its  form  of  govern- 
ment, and  after  dissolving  its  connection  with  England, 
declared  that  the  people  were  the  source  of  power  in  that 
colony  and  held  the  sole  right  to  construct  its  govern- 
ment, adopted  its  British  charter. 


ORGANIZATION    OF    THE    STATES,    ETC.  3 1 

Each  colony  formed  its  charter,  or  corporate  govern- 
ment, with  the  view  of  becoming  a  part  of  a  corporate 
government  to  be  constructed  by  the  Colonial  Congress, 
and  ratified  by  the  legislatures  of  the  respective  states 
for  the  union,  as  advised  by  the  resolution  of  the  8th  of 
May,  1776.  Although  Virginia  and  South  Carolina  each 
formed  a  government  before  said  resolution  was  adopted, 
it  is  evident  from  their  constitution  and  bill  of  rights  that 
each  of  those  states  also  formed  its  corporate  government 
with  the  expectation  of  its  constituting  a  part  of  a  cor- 
poration for  the  government  of  the  union. 

The  states  respectively  reserved  the  police  powers  and 
the  management  of  its  domestic  affairs  by  express  pro- 
vision in  the  organization  of  the  corporation,  although 
authority  to  ratify  a  charter  for  the  union  was  vested  in 
the  legislature,  consequently  the  legislature  being  but 
agents  for  the  sovereign  people,  they  could  not  ratify  a 
grant  of  the  police  powers,  or  the  rights  to  manage  the 
domestic  affairs  to  the  union.  But  the  Colonial  Con- 
gress was  as  careful  in  preserving  these  rights  in  the 
states  as  the  states  were,  and  provided  in  the  Articles  of 
Confederation  that  "each  state  retains  its  sovereignty, 
freedom  and  independence,  and  every  power,  jurisdiction 
and  right  which  is  not  by  this  confederation  expressly 
delegated  to  the  United  States  in  congress  assembled."  * 
The  people  of  the  states  having  reserved  to  themselves 
the  entire  sovereign  authority,  this  reservation  of  sover- 
eignty to  the  respective  states,  was  in  effect  a  reser\'ation 
of  said  authority  to  the  people  of  the  respective  states. 

But  the  compact  was  defective,  principally  because  there 
w^as  no  direct  connection  between  the  people  and  their  cor- 
porate agent  to  manage  the  affairs  of  the  union,  and  the 

*  Article  2,  Confederation. 


32  CONSTITUTION   OF   THE  UNITED   STATES. 

union  did  not  have  sufficient  powers  to  maintain  its 
organization.  Consequently  it  was  necessary  to  amend 
its  organization  and  perfect  the  union,  and  rearrange  its 
powers.  Not  to  do  away  with  the  old  law,  but  to  amend 
it  so  as  to  make  it  meet  the  needs  and  exigencies  of  the 
government.  And  the  better  to  preser\^e  the  great 
American  principles  of  government. 


CONSTITUTION   OF    1 787.  33 

CHAPTER    II. 

Constitution  of    1787. 


Although  the  Constitution  of  1777  was  not  finally  rati- 
fied until  March,  1781,  congress  during  the  session  of 
1781-2,  by  resolution,  appealed  to  the  states  for  addi- 
tional powers  to  enable  it  to  provide  adequate  laws 
relating  to  duties  and  revenues. 

In  April,  1783,  congress  again  appealed  to  the  states 
to  extend  its  powers,  to  enable  it  to  levy  certain  duties 
on  importations. 

On  the  30th  of  April,  1784,  congress  proposed  to  the 
states  to  extend  its  powers,  so  as  to  enable  it  to  manage 
the  commerce  for  fifteen  years,  which  proposition  was 
prepared  and  presented  by  a  committee  appointed  for 
that  purpose. 

As  appears  by  the  report  of  that  committee,  most  of 
the  states  responded  favorably  to  that  proposition,  but 
placed  such  restrictions  and  limitations  on  the  authority 
so  granted,  as  to  render  it  unavailing;  and  three  of  the 
states  took  no  action  on  the  proposition. 

Various  amendments  to  the  Constitution  of  1777  were 
proposed  and  discussed  in  congress,  but  none  of  them 
came  to  any  final  results. 

On  the  2ist  of  January,  1786,  the  Virginia  House  of 
Delegates  passed  a  resolution,  requesting  the  appoint- 
ment of  a  commission  consisting  of  members  from  each  of 
the  states,  hoping  it  would  lead  to  an  enlargement  of  the 
powers  of  congress.  Messrs.  Edmund  Randolph,  James 
Madison,  Jr.,  Walter  Jones,  St,  George  Tucker,  Meri- 
wether Smith,  Da\'id  Ross,  William  Ronald  and  George 


34  CONSTITUTION   OF   THE  UNITED   STATES. 

Mason,  were  appointed  on  that  commission,  who  or  any 
five  of  them,  were  authorized  to  meet  such  commission- 
ers as  may  be  appointed  by  the  other  states  at  a  time 
and  place  to  be  agreed  on,  to  take  into  consideration 
the  trade  of  the  United  States  ;  to  consider  how  far  a 
uniform  system  in  their  commercial  regulation  may  be 
necessary  to  their  common  interest,  and  their  permanent 
harmony;  and  to  report  to  the  several  states  such  an  act 
relative  to  this  great  object,  as,  when  unanimously  rati- 
fied by  them,  will  enable  the  United  States  in  congress 
assembled,  effectually  to  provide  for  the  same ;  that  the 
said  commissioners  shall  immediately  transmit  to  the 
several  states,  copies  of  the  preceding  resolution,  with  a 
circular  letter  requesting  their  concurrence  therein,  and 
proposing  a  time  and  place  for  the  meeting  aforesaid.* 

Pursuant  to  that  resolution,  the  states  of  New  York, 
New  Jersey,  Pennsylvania,  Delaware  and  Virginia  sent 
delegates  to  Annapolis,  Mar>4and,  the  place  previously 
agreed  on  for  said  commission  to  meet ;  there  being  but 
five  states  represented,  the  delegates  concluded  to  prepare 
an  address  to  congress,  and  report  to  the  several  states 
that  had  delegates  at  that  meeting,  to  be  called  to  meet 
at  Philadelphia  on  the  second  Monday  in  May,  1787: 
they  then  adjourned. 

On  the  2 1  St  of  February,  1787,  a  committee,  thereto- 
fore appointed  by  congress,  reported  in  favor  of  its 
calling  a  convention  of  the  states,  to  meet  on  the  second 
Monday  in  May,  1787,  as  recommended  by  the  Annapolis 
convention;  but  there  seemed  some  difiBculty  in  passing 
an  act  to  call  the  convention  by  congress.  The  delegates 
from  New  York  proposed:  "That  it  be  recommended  to 
the  states,  that  a  convention  of  the  representatives  of  the 


*  Elliott's  Debates,  vol.  i,  page  115. 


CONSTITUTION    OF    1 787.  35 

States  be  held  .  .  .  for  the  purpose  of  revising 
the  Articles  of  Confederation,"  which  motion  was  de- 
feated. 

The  members  from  Massachusetts  then  moved  the  fol- 
lowing: "W/iereas,  there  is  provision  in  the  Articles  of 
Confederation  and  Perpetual  Union,  for  making  alterations 
therein,  by  the  assent  of  a  congress  of  the  United 
States,  and  of  the  legislatures  of  the  several  states  ;  and, 
whereas,  experience  hath  evinced  that  there  are  de- 
fects in  the  present  confederation  ;  as  a  mean  to  remedy 
which,  several  of  the  states,  and  particularly  the  state  of 
New  York,  by  express  instructions  to  their  delegates  in 
congress,  have  suggested  a  convention  for  the  purposes 
expressed  in  the  following  resolution  ;  and  such  conven- 
tion appearing  to  be  the  most  probable  means  of  estab- 
lishing in  these  states  a  firm  national  government — 

"/Resolved,  That,  in  the  opinion  of  congress,  it  is  ex- 
pedient that,  on  the  second  Monday  in  May  next,  a 
convention  of  delegates,  who  shall  have  been  appointed 
by  the  several  states,  be  held  at  Philadelphia,  for  the  sole 
and  express  purpose  of  revising  the  Articles  of  Confeder- 
ation, and  reporting  to  congress  and  the  several  legis- 
latures, such  alterations  and  provisions  therein  as  shall, 
when  agreed  to  in  congress,  and  confirmed  by  the 
states,  render  the  federal  constitution  adequate  to  the 
exegencies  of  government  and  the  preservation  of  the 
union."  Which  was  agreed  to,  and  then  passed  by 
congress. 

To  this  resolution  all  the  states  responded,  and  ap- 
pointed delegates,  to  meet  on  the  second  Monday  in  May, 
1787,  except  Rhode  Island. 

Each  state  instructed  its  delegates  to  discuss  and  re- 
port how  the  Articles  of  Confederation  could  be  amended 
so  as  to  meet  the  exigencies  of  the  government  and  pre- 
serve the  '''' federal  imionj'^ 


36  CONSTITUTION   OF  THE   UNITED  STATES. 

The  time  for  the  meeting  was  the  second  Monday  in 
May,  but  it  was  the  25th  of  that  month  before  enough  of 
the  delegates  reported,  to  represent  a  majority  of  the 
states. 

On  Friday,  the  25th  of  May,  1787,  delegates  from 
New  York,  New  Jersey,  Pennsylvania,  Delaware,  Vir- 
ginia, North  Carolina  and  South  Carolina,  seven  states, 
being  present  by  representation,  on  motion  of  R.  Morris, 
General  Washington  was  unanimously  chosen  to  take 
the  chair  as  president  of  the  convention. 

After  the  credentials  of  the  delegates  from  seven 
states  were  read,  door-keepers,  messengers  and  commit- 
tee on  rules  were  severally  appointed  ;  the  convention  ad- 
journed over  to  Monday,  the  28th  of  May,  1787. 

On  the  28th,  the  convention  met,  and  the  committee 
on  rules  reported.  After  several  amendments  thereto 
were  proposed,  the  rules  were  referred  back  to  the  same 
committee.  On  that  day  delegates  from  Massachusetts 
and  Connecticut  reported,  making  nine  states  represented 
in  the  convention. 

The  convention,  after  receiving  the  delegates  from 
said  two  additional  states,  adjourned  to  the  next  day,  it 
being  the  29th. 

On  the  29th  met  pursuant  to  adjournment,  and  Ed- 
mund Randolph,  of  Virginia,  after  an  elaborate  speech, 
offered  a  series  of  resolutions  relating  to  a  plan  of  govern- 
ment to  be  constructed,  which  were  as  follows : 

"i.  Resolved,  That  the  Articles  of  the  Confederation 
ought  to  be  so  corrected  and  enlarged  as  to  accomplish 
the  objects  proposed  by  their  institution  ;  namely,  com- 
mon defense,  security  of  liberty,  and  general  welfare. 
si  "2.  Resolved,  Therefore,  that  the  right  of  suffrage,  in 
*^the  national  legislature,  ought  to  be  proportioned  to  the 
quotas  of  contribution,  or  to  the  number  of  free  inhabit- 


CONSTITUTION    OF    1 787.  37 

ants,  as  the  one  or  the  other  may  seem  best  in  different 
cases. 

W  "3.  Resolved,  That  the  national  legislature  ought   to 
consist  of  two  branches. 

N   '  '4.  Resolved,  that  the  members  of  the  first  branch  of 
the  national  legislature  ought  to  be  elected  bvthe  peoplef- 

of  the  several  states,  every for  the  term  of ,  to 

be  the  age  of  years,   at  least ;    to  receive  liberal 

stipends,  by  which  they  may  be  compensated  for  the  de- 
votion of  their  time  to  the  public  service  ;  to  be  ineligible 
to  any  ofiice  established  by  a  particular  state  or  under 
the  authority  of  the  United  States  (except  those  peculiarly 
belonging  to  the  functions  of  the  first  branch)  during  the 
term  of  service  and  for  the  space  of after  its  expira- 
tion ;  to  be  incapable  of  re-election  for  the  space  of 

after  the  expiration  of  their  term  of  service ;  and  to  be 
subject  to  recall. 

5.  Resolved,  That  the  members  of  the  second  branch 
of  the  national  legislature  ought  to  be  elected  by  those  of 
the  first,  out  of  a  proper  number  of  persons  nominated 

by  the  individual  legislatures,   to  be  of  the  age  of 

years,  at  least ;  to  hold  their  offices  for  a  term  sufficient 
to  insure  their  independency  ;  to  receive  liberal  stipends, 
by  which  they  may  be  compensated  for  the  devotion  of 
their  time  to  the  public  service  ;  and  to  be  ineligible  to 
any  office  established  by  a  particular  state,  or  under  the 
authority  of  the  United  States  (except  those  particularly 
belonging  to  the  functions  of  the  second  branch)  during 

the  term  of  service  ;    and  for  the  space  of after  the 

expiration  thereof. 

xj  "6.  Resolved,  That  each  branch  ought  to  possess  the 
right  of  originating  acts ;  that  the  national  legislatures 
ought  to  be  empowered  to  enjoy  the  legislative  rights 
vested  in  congress  by  the  confederation  ;  and,  moreover, 
to  legislate  in  all  cases  to  which  the  sepaialfi-Statej^are___ 


»3U 


434'104 


38  CONSTITUTION   OF   THE   UNITED   STATES. 

incompetent,  or  in  which  the  harmony  of  the  Uaited_ 
"IS^ates  may  be  interrupted  by  the  exercise  of  individual 
legislation  ;  to  negative  all  laws  passed  by  the  several 
states,  contravening,  in  the  opinion  of  the  national  legis- 
lature, the  articles  of  union,  or  any  treaty  subsisting 
under  the  authority  of  the  union  ;  and  to  call  forth  the 
force  of  the  union  against  any  member  of  the  union  fail- 
ing to  fulfill  its  duty  under  the  articles  thereof. 

"7.  Resolved,  That  a  national  executive  be  instituted, 
to  be  chosen  by  the  national  legislature  for  the  term  of 

years,  to  receive  punctually,  at  stated  times,  a  fixed 

compensation  for  the  services  rendered,  in  which  no  in- 
crease or  diminution  shall  be  made,  so  as  to  affect  the 
magistracy  existing  at  the  time  of  the  increase  or  diminu- 
tion ;  to  be  ineligible  a  second  time  ;  and  that,  besides  a 
general  authority  to  execute  the  national  laws,  it  ought 
to  enjoy  the  executive  rights  vested  in  congress  by  the 
confederation. 

"8.  Resolved,  That  the  executive,  and  a  convenient 
number  of  the  national  judiciary,  ought  to  compose  a 
council  of  revision,  with  authority  to  examine  every  act 
of  the  national  legislature  before  it  shall  operate,  and 
every  act  of  a  particular  legislature  before  a  negative 
thereon  shall  be  final ;  and  that  the  dissent  of  the  said 
council  shall  amount  to  a  rejection,  unless  the  act  of  the 
national  legislature  be  again  passed,  or  that  of  a  particu- 
lar legislature  be  again  negatived  by of  the  mem- 
bers of  each  branch. 

"9.  Resolved,  That  a  national  judiciary  be  established 
— to  hold  their  oflfices  during  good  behavior,  and  to  re- 
ceive punctually,  at  stated  times,  a  fixed  compensation 
for  their  services,  in  which  no  increase  or  diminution  shall 
be  made,  so  as  to  affect  the  persons  actually  in  office  at 
the  time  of  such  increase  or  diminution.  That  the  juris- 
diction of  the  inferior  tribunals  shall  be  to  hear  and  de- 


CONSTITUTION   OF    1 787.  39 

termine  in  the  first  instance,  and  of  the  supreme  tribunal 
to  hear  and  determine  in  the  dernier  ressort,  all  piracies 
and  felonies  on  the  seas,  captures  from  an  enemy,  cases 
in  which  foreigners,  or  citizens  of  other  states  applying 
to  such  jurisdictions,  may  be  interested,  or  which  respect 
the  collection  of  the  national  revenue ;  impeachments  of 
any  national  ofl&cer  and  questions  which  involve  the  na- 
tional peace  or  harmony. 

"10.  Resolved,  That  provision  ought  to  be  made  for 
the  admission  of  states,  lawfully  arising  within  the  limits 
of  the  United  States,  whether  from  a  voluntary  junction 
of  government  or  territory,  or  otherwise,  with  the  con- 
sent of  a  number  of  voices  in  the  national  legislature  less 
than  the  whole. 

iX'ii.  Resolved,  That  a  republican  government  and  the 
territory  of  each  state  (except  in  the  instance  of  a  vol- 
untary junction  of  government  and  territor}')  ought  to 
be  guaranteed  by  the  United  States  to  each  state. 

"12.  Resolved,  That  provision  ought  to  be  made  for 
the  continuance  of  congress,  and  their  authorities  and 
privileges  until  a  given  day,  after  the  reform  of  the  arti- 
cles of  union  shall  be  adopted,  and  for  the  completion  of 
all  of  their  engagements. 

"13.  Resolved,  That  provision  ought  to  be  made  for 
the  amendments  of  the  articles  of  union,  whensoever  it 
shall  seem  necessary,  and  that  the  assent  of  the  national 
legislature  ought  not  to  be  required  thereto. 

>J  "14.  Resolved,  That  the  legislative,  executive  and 
judiciary  powers  within  the  several  states  ought  to  be 
bound  by  oath  to  support  the  articles  of  union. 

"15.  Resolved,  That  the  amendments  which  shall  be 
offered  to  the  confederation  by  the  convention  ought,  at 
a  proper  time  or  times,  after  the  approbation  of  congress, 
to  be  submitted  to  an  assembly  or  assemblies  of  repre- 
sentatives, recommended  by  the  several  legislatures,  to  be 


40  CONSTITUTION   OF   THE   UNITED   STATES. 

expressly  chosen  by  the  people  to  consider  and  decide 
thereon. 

"  i6.  Resolved,  That  the  house  will  to-morrow  resolve 
itself  into  a  committee  of  the  whole  house  to  consider  of 
the  state  of  the  American  Union. ' ' 

Mr.  Randolph  confessed  that  they  were  not  intended 
to  establish  a  federal  government,  but  rather  a  strong, 
consolidated  union,  in  which  the  states  would  be  nearly 
annihilated.  He  then  moved  that  they  should  be  taken 
in  committee  of  the  whole. 

Mr.  C.  Pinckney,  a  member  from  South  Carolina,  then 
stated  that  he  had  reduced  his  ideas  of  a  new  govern- 
ment to  a  system,  in  writing,  which  he  then  read,  and 
stated  that  his  plan  was  grounded  on  the  same  principles 
as  the  resolutions  of  Mr.  Randolph. 

The  house  then  resolved  to  go  into  committee  of  the 
whole  on  the  following  day,  for  the  consideration  of  the 
state  of  the  union,  and  then  adjourned  to  the  next 
day. 

On  May  the  30th  the  convention  met  pursuant  to  ad- 
journment, and  resolved  itself  into  committee  of  the 
whole,  and  Mr.  Gorham,  of  Massachusetts,  was  chosen 
as  chairman. 

Mr.  Randolph  then  moved  to  adopt  his  first  resolution. 
Mr.  G.  Morris  observed  that  it  was  an  unnecessary  reso- 
lution, as  the  subsequent  resolution  would  not  agree  with 
it.  It  was  then  withdrawn  by  Mr.  Randolph  and  the 
following  proposed  in  its  stead  : 

"  I .  Resolved,  That  a  union  of  the  states,  merely  fed- 
eral, will  not  accomplish  the  objects  proposed  by  the 
Articles  of  Confederation,  namely,  '  common  defense,  se- 
curity, liberty,  and  general  welfare.' 

"2.  Resolved,  That  no  treaty  or  treaties  among  the 
states,  as  sovereign,  will  accomplish  or  secure  their  com- 
mon defense,  liberty,  or  welfare. 


CONSTITUTION   OF    1 787.  4 1 

"  3.  Resolved,  That  a  national  government  ought  to  be 
established,  consisting  of  a  supreme  judicial,  legislative, 
and  executive." 

Various  modifications  were  proposed  to  the  first  resolu- 
tion, and  rejected;  at  last  Mr.  Pinckney  observed  :  "If 
the  convention  agrees  to  it,  its  business  is  at  an  end,  as 
the  convention  met  to  alter  or  amend  the  Articles  of 
Confederation  only. ' ' 

Thereupon  the  first  and  second  resolutions  were  dropped 
and  the  third  only  agitated. 

The  third  had  difiSculties  also  in  the  convention.  The 
term  supreme  had  to  be  explained  ;  it  was  asked  whether 
it  was  intended  to  annihilate  the  state  governments. 
The  friends  of  the  resolution  assured  the  convention  that 
the  states  would  be  interfered  with  only  in  so  far  as  their 
powers  would  clash  with  those  to  be  granted  to  the  union. 
It  was  then  supported  by  the  votes  of  Massachusetts, 
Pennsylvania,  Delaware,  Virginia,  North  Carolina,  and 
South  Carolina,  for  ;  Connecticut,  New  Jersey  (and  New 
York  divided)  against. 

The  next  resolution  taken  up  was  as  follows  :  ' '  That 
the  mode  of  the  present  representation  is  unjust ;  that 
the  suffrage  ought  to  be  in  proportion  to  numbers  or 
property. ' ' 

To  this  Delaware  objected  and  moved  a  postponement 
of  its  consideration,  which  was  agreed  to.  The  conven- 
tion then  adjourned  to  the  next  day. 

From  that  time  on  the  convention,  in  committee  of 
the  whole,  was  engaged  in  considering  the  Randolph 
resolutions,  with  the  various  amendments,  changes,  and 
substitutes  offered  thereto,  until  the  13th  of  June,  on 
which  day  the  committee  of  the  whole  reported  said  reso- 
lutions to  the  convention,  after  revising,  amending,  and 
correcting  them. 


42  CONSTITUTION    OF   THE   UNITED    STATES. 

The  said  resolutions,  as  reported  to  the  convention  by 
the  committee  of  the  whole,  were  as  follows : 

"  I.  That  it  is  the  opinion  of  this  committee  that  a 
national  government  ought  to  be  established,  consisting 
of  a  supreme  legislative,  judiciary,  and  executive. 

"2.  That  the  national  legislature  ought  to  consist  of 
two  branches. 

"3,  That  the  members  of  the  first  branch  of  the  na- 
tional legislature  ought  to  be  elected  by  the  people  of  the 
several  states  for  the  terms  of  three  years,  to  receive 
fixed  stipends,  etc.  (as  in  the  original  Randolph  reso- 
lution). 

"4.  That  the  members  of  the  second  branch  of  the 
national  legislature  ought  to  be  chosen  by  the  individual 
legislatures  ;  to  be  of  the  age  of  thirty  years,  at  least ; 
to  hold  their  ofl&ces  for  a  term  sufficient  to  insure  their 
independency,  namely,  seven  years ;  to  receive  fixed  sti- 
pend, etc.  (as  in  the  third  resolution). 

"5.  That  each  branch  ought  to  possess  the  right  of 
originating  acts. 

' '  6.  That  the  national  legislature  ought  to  be  empow- 
ered to  enjoy  the  legislative  rights  vested  in  congress 
by  the  confederation,  and,  moreover,  to  legislate  in  all 
cases  to  which  the  separate  states  are  incompetent,  or  in 
which  the  harmony  of  the  United  States  may  be  inter- 
rupted by  the  exercise  of  independent  legislation ;  to 
negative  all  laws  passed  by  the  several  states  contraven- 
ing, in  the  opinion  of  the  national  legislature,  the  articles 
of  union. 

"7.  That  the  right  of  suffrage  in  the  first  branch 
of  the  national  legislature  ought  not  to  be  according  to 
the  rule  established  in  the  Articles  of  Confederation 
but  according  to  the  same  equitable  ratio  of  the  repre- 
sentation ;  namely,  in  proportion  to  the  whole  number  of 
white  and   other  free  citizens  and   inhabitants  of  every 


CONSTITUTION   OF    1 787.  43 

age,  sex  and  condition,  including  those  bound  to  servitude 
for  a  term  of  years,  and  three-fifth  of  all  other  persons 
not  comprehended  in  the  foregoing  description,  except 
Indians  not  paying  taxes  in  each  state. 

' '  8.  That  the  right  of  suffrage  in  the  second  branch 
of  the  national  legislature  ought  to  be  according  to  the 
rule  established  for  the  first, 

"9.  That  a  national  executive  be  instituted  to  consist 
of  a  single  person,  to  be  chosen  by  the  national  legisla- 
ture for  the  term  of  seven  years,  with  power  to  carry 
into  execution  the  national  laws,  to  appoint  to  office  in 
cases  not  otherwise  provided  for,  to  be  ineligible  a  second 
time,  and  to  be  removable  on  impeachment  and  convic- 
tion of  malpractice  or  neglect  of  duty  ;  to  receive  a  fixed 
stipend,  by  which  he  may  be  compensated  for  the  de- 
votion of  his  time  to  public  service,  to  be  paid  out  of  the 
national  treasury. 

"10.  That  the  national  executive  shall  have  a  right  to 
negative  any  legislative  act  which  shall  not  be  afterwards 
passed  by  two-third  parts  of  each  branch  of  the  national 
legislature. 

"11.  That  a  national  judiciary  be  established  to  con- 
sist of  one  supreme  tribimal,  the  judges  of  which  to  be 
appointed  by  the  second  branch  of  the  national  legisla- 
ture, to  hold  their  offices  during  good  behavior,  to  re- 
ceive punctually  at  stated  times  a  fixed  compensation  for 
their  services,  in  which  no  increase  or  diminution  shall 
be  made  so  as  to  affect  the  persons  actually  in  office  at  the 
time  of  such  increase  or  diminution. 

"12.  That  the  national  legislature  be  empowered  to 
appoint  inferior  tribunals. 

"13.  That  the  jurisdiction  of  the  national  judiciary 
shall  extend  to  cases  which  respect  the  collection  of  the 
national  revenue,  impeachment  of  any  national  officers, 


44  CONSTITUTION   OF   THE  UNITED   STATES. 

and   questions  which  involve    the   national    peace   and 
harmony. 

"14.  That  provision  ought  to  be  made  for  the  admis- 
sion of  states  lawfully  arising  within  the  limits  of  the 
United  States,  whether  from  a  voluntary  junction  of 
government  and  territory,  or  otherwise,  with  the  consent 
of  a  number  of  voices  in  the  national  legislature  less  than 
the  whole. 

"15.  That  provision  ought  to  be  made  for  the  continu- 
ance of  congress  and  their  authorities,  until  a  given  day 
after  the  reform  of  the  Articles  of  Union  shall  be  adopted, 
and  for  the  completion  of  all  their  engagements. 

"16.  That  a  repubHcan  constitution  and  its  existing 
laws  ought  to  be  guaranteed  to  each  state  by  the  United 
States. 

"17.  That  provision  ought  to  be  made  for  the  amend- 
ment of  the  Articles  of  Union  whensoever  it  shall  seem 
necessary. 

"18.  That  the  legislative,  executive  and  judiciary 
powers  within  the  several  states  ought  to  be  bound  by 
oath  to  support  the  Articles  of  Union. 

"19.  That  the  amendments  which  shall  be  offered  to 
the  confederation  by  the  convention  ought  at  a  proper 
time  or  times  after  the  approbation  of  congress  to  be 
submitted  to  an  assembly  or  assemblies  of  representa- 
tives, recommended  by  the  several  legislatures,  to  be 
expressly  chosen  by  the  people,  to  consider  and  decide 
thereon. ' ' 

When  this  report  came  to  the  convention  and  was 
read  it  was  agreed  that  consideration  of  it  should  be 
postponed  until  the  next  day,  and  the  convention  then 
adjourned. 

On  the  14th  of  June  met  in  pursuance  to  adjournment. 
On  motion  of  the  Hon.   Mr.  Patterson,  of  New  Jersey, 


CONSTITUTIOX    OF    1 787.  45 

the  consideration  of  said  report  was  again  postponed  and 
the  convention  adjourned  to  the  next  day. 

On  the  15th  of  June  met  pursuant  to  adjournment. 
Hon.  Mr.  Patterson  offered  eleven  resolutions  as  a  sub- 
stitute for  the  report  of  the  committee  of  the  whole. 
As  the  first  and  second  of  said  resolutions  of  Mr.  Patter- 
son will  show  the  main  difference  between  the  Patterson 
or  New  Jersey  plan  (based  entirely  on  federal  principles) 
and  the  Randolph  or  Virginia  plan  (laid  mainly  on 
national  principles),  I  will  copy  those  two  resolutions 
only.         They  are  as  follows  : 

"  I .  Resolved,  ' '  That  the  Articles  of  Confederation 
ought  to  be  revised,  corrected  and  enlarged  so  as  to 
render  the  federal  constitution  adequate  to  the  exigencies 
of  government  and  the  preservation  of  the  union. 

"2.  Resolved,  That,  in  addition  to  the  powers  vested  in 
the  United  States  in  congress,  by  the  present  existing 
Articles  of  Confederation,  they  be  authorized  to  pass 
acts  for  raising  a  revenue,  by  levying  a  duty  or  duties  on 
all  goods  and  merchandise  of  foreign  growth  or  manu- 
facture, imported  into  any  part  of  the  United  States  ;  by 
stamps  on  paper,  vellum,  or  parchment ;  and  by  a 
postage  on  all  letters  and  packages  passing  through  the 
general  post-office,  to  be  applied  to  such  federal  purposes 
as  they  shall  deem  proper  and  expedient ;  to  make  rules 
and  regulations  for  the  collecting  thereof  ;  and  the  same 
from  time  to  time  to  alter  and  amend,  in  such  manner  as 
they  shall  think  proper.  To  pass  acts  for  the  regulation 
of  trade  and  commerce  as  well  with  foreign  nations  as 
with  each  other  ;  provided,  that,  all  punishments,  fines, 
forfeitures  and  penalties,  to  be  incurred  for  contravening 
such  rules  and  regulations,  shall  be  adjudged  by  the  com- 
mon law  judiciary  of  the  states  in  which  any  offense  con- 
trary to  the  true  intent  and  meaning  of  such  rules  and 
regulations   shall    be    permitted    or   perpetrated ;    with 


46  CONSTITUTION    OF    THK   UNITED    STATES. 

liberty  of  commencing,  in  the  first  instance,  all  suits  or 
prosecutions  for  that  purpose  in  the  superior  common-law 
judiciary  of  such  state  ;  subject,  nevertheless,  to  an  ap- 
peal for  the  correction  of  all  errors,  both  in  law  and  fact, 
in  rending  judgment,  to  the  judiciary  of  the  United 
States."* 

It  will  be  remembered  that  under  the  Articles  of  Con- 
federation there  was  but  one  branch  of  congress,  and 
each  state  was  entitled  to  but  one  vote,  without  regard 
to  population  ;  the  New  Jersey  or  Patterson  plan,  proposed 
no  change  as  to  that  provision.  With  that  provision  in  the 
new  form  of  government,  it  would  have  remained  absolutely 
federal  and  have  recognized  the  states  as  sovereign  and  have 
left  their  governments  above  that  of  the  union,  as  was 
the  case  under  the  Articles  of  Confederation.  And 
as  the  act  of  congress  calling  the  convention  advised 
that,  ''the  Articles  of  Confederatioji  be  so  amended  as  to 
render  them  adequate  to  the  exigencies  of  gover7iment,  and 
the  preservation  of  the  union,''''  and  each  of  the  states 
sending  delegates  to  that  convention  made  use  of  the 
same  language,  the  New  Jersey  plan  had  the  merit  of 
being  in  conformity  with  the  powers  given  to  the  dele- 
gates in  the  convention. 

The  Virginia,  or  Randolph,  plan  departing  from  in- 
structions proposed  to  change  the  government  of  the 
Union,  from  a  federal  to  a  national  form. 

Upon  the  introduction  of  Mr.  Patterson's  resolution,  it 
was  moved  by  Mr.  Madison  and  seconded  by  Mr.  Sher- 
man, to  refer  the  Patterson  resolutions  to  a  committee  of 
the  whole,  which  carried. 

Mr.  Rutledge  then  moved  to  re-commit  the  Virginia 
resolutions  as  amended  to  the  committee  of  the  whole, 


*  Elliott's  Debates,  vol.  i,  page  175. 


CONSTITUTION    OF    1 787.  47 

which  was  seconded  by  Mr.  Hamilton,  and  passed  in  the 
afiBrmative. 

The  convention  then  adjourned  to  the  next  day. 

Those  two  plans  for  a  government  for  the  union  were 
discussed  by  the  committee  of  the  whole,  from  day  to 
day  until  the  19th  of  June,  when  on  motion  the  commit- 
tee agreed  to  rise  and  report  that  it  did  not  agree  to  the 
Patterson  resolutions,  and  that  it  adhered  to  its  former 
report.  Massachusetts,  Connecticut,  Pennsylvania,  Vir- 
ginia, North  Carolina,  South  Carolina  and  Georgia, 
seven  states  for  ;  and  New  York,  New  Jersey  and  Dela- 
ware against  (and  Maryland  divided). 

The  committee  of  the  whole  then  reported  its  action  to 
the  convention  on  the  said  19th  of  June. 

A  motion  to  postpone  the  consideration  of  the  first  re- 
solve until  the  next  day  carried,  and  the  convention  then 
adjourned  to  the  next  day. 

On  June  the  20th  met  agreeably  to  adjournment.  The 
convention  then  took  up  the  report  of  the  committee  of 
the  whole,  and  discussed  it  with  great  ability,  earnest- 
ness and  zeal,  from  day  to  day,  until  the  2d  of  July. 

The  zeal  and  earnestness  with  which  the  advocates  of 
the  two  plans  had  been  discussed,  betrayed  acrimony 
and  bitterness,  and  it  was  seriously  feared  that  the  con- 
vention would  have  to  adjourn  without  accomplishing 
any  thing. 

To  show  the  want  of  confidence,  as  well  as  the  state  of 
feeling  in  the  convention  at  that  time,  it  may  not  be  out 
of  place  to  report  a  speech  made  by  the  Hon.  Mr.  Bed- 
ford on  the  30th  of  June,  w^hich  is  as  follows  : 

' '  That  all  of  the  states  at  present  are  equally  sovereign 
and  independent,  has  been  asserted  from  every  quarter 
of  this  house — our  deliberations  here  are  a  confirmation  of 
the  position  ;  and  I  may  add  to  it,  that  each  of  them  acts 
from  interested  and  many  from  ambitious  motives. 


48  CONSTITUTION   OF   THE   UNITED   STATES. 

lyook  at  the  votes  whicli  have  been  given  on  the  floor 
of  this  house,  and  it  will  be  found  that  their  numbers, 
wealth  and  local  views  have  actuated  their  determina- 
tions, and  that  the  larger  states  proceed  as  if  our  eyes 
were  already  perfectly  blinded. 

"  Impartiality,  with  them,  is  already  out  of  the  ques- 
tion ;  the  reported  plan  is  their  political  creed,  and  they 
support  it,  right  or  wrong. 

' '  Even  the  diminutive  state  of  Georgia  has  an  eye  to 
her  future  wealth  and  greatness. 

"  South  Carolina,  puffed  up  with  the  possession  of  her 
wealth  and  negroes,  and  North  Carolina,  are  all,  from 
different  views,  united  with  the  great  states.  And  these 
latter,  although  it  is  said  they  can  never,  from  interested 
views,  form  a  coalition,  we  find  closely  united  in  one 
scheme  of  interest  and  ambition  (notwithstanding  they 
endeavor  to  amuse  us  with  the  purity  of  their  principle 
and  the  rectitude  of  their  intentions),  in  asserting  that 
the  general  government  must  be  drawn  from  an  equal 
representation  of  the  people.  Pretenses  to  support  am- 
bition are  never  wanting. 

' '  Their  cry  is,  '  Where  is  the  danger  ? '  And  they  insist 
that  although  the  powers  of  the  general  government  will 
be  increased,  yet  it  will  be  for  the  good  of  the  whole  ; 
and  although  the  three  great  states  form  nearly  a  major- 
ity of  the  people  of  America,  they  never  will  hurt  or 
injure  the  lesser  states.  /  do  not,  gentlemen,  trust  you. 
If  you  possess  the  power,  the  abuse  of  it  could  not  be 
checked  ;  and  what  then  would  prevent  you  from  exer- 
cising it  to  our  destruction?  You  gravely  allege  that 
there  is  no  danger  of  combination,  and  triumphantly  ask, 
'  How  could  combinations  be  effected  ? '  The  large 
states,  you  say,  '  all  differ  in  productions  and  commerce, 
and  experience  shows  that,  instead  of  combinations,  they 


CONSTITUTION   OF    1 787.  49 

would  be  rivals,  and  counteract  the  views  of  one  an- 
other. ' 

"  This,  I  repeat,  is  language  calculated  only  to  amuse 
us.  Yes,  sir  ;  the  larger  states  will  be  rivals,  but  not 
against  each  other — they  will  be  rivals  against  the  rest 
of  the  states.  But  it  is  urged  that  such  a  government 
would  suit  the  people,  and  that  its  principles  are  equita- 
ble and  just. 

"How  often  has  this  argument  been  refuted,  when 
applied  to  a  federal  government  !  The  small  states  never 
can  agree  to  the  Virginia  plan  ;  and  why,  then,  is  it  still 
urged  ?  But  it  is  said  that  it  is  not  expected  that  the 
state  governments  ^ill  approve  the  proposed  system,  and 
that  this  house  must  directly  carry  it  to  the  people  for 
their  approbation  !  Is  it  come  to  this,  then,  that  the 
sword  must  decide  this  controversy,  and  that  the  horrors 
of  war  must  be  added  to  the  rest  of  our  misfortunes  ? 

' '  But  what  have  the  people  already  said  ?  '  We  find 
the  confederation  defective.  Go,  and  give  additional 
powers  to  the  confederation — give  to  it  the  imposts,  regu- 
lation of  trade,  power  to  collect  the  taxes,  and  the  means 
to  discharge  our  foreign  and  domestic  debts.' 

"Can  we  not  then,  as  their  delegates,  agree  upon 
these  points  ? 

"As  their  ambassadors,  can  we  not  clearly  grant  those 
powers  ?  Why,  then,  when  we  are  met,  must  entire  dis- 
tinct and  new  grounds  be  taken,  and  a  government  of 
which  the  people  had  no  idea  be  instituted  ?  And  are 
we  to  be  told,  if  we  won't  agree  to  it,  it  is  the  last  mo- 
ment of  our  deliberations  ? 

"I  say,  it  is  indeed  the  last  moment,  if  we  do  not 
agree  to  this  assumption  of  power. 

' '  The  states  will  never  again  be  entrapped  into  a 
measure  like  this.  The  people  will  say,  '  The  small 
states  would  confederate,  and  grant  further  powers  to 


50  CONSTITUTION   OF   THE   UNITED   STATES. 

congress,  but  you,  the  large  states,  would  not.  Then 
the  fault  would  be  yours,  and  all  the  nations  of  the  earth 
will  justify  us.  But  what  is  to  become  of  our  public 
debts,  if  we  dissolve  the  union  ? '  Where  is  your 
plighted  faith  ?  Will  you  crush  the  small  states,  or  must 
they  be  left  unmolested  ?  Sooner  than  be  ruined,  there 
are  foreign  powers  who  wotdd  take  us  by  the  hand.  I  say 
not  this  to  threaten  or  intimidate,  but  that  we  should  re- 
flect seriously  before  we  act.  If  we  once  leave  this 
floor,  and  solemnly  renounce  your  new  project,  what  will 
be  the  consequence  ?  You  will  annihilate  your  federal 
government,  and  ruin  must  stare  you  in  the  face.  I^et 
us,  then,  do  what  is  in  our  power — amend  and  enlarge 
the  confederation,  but  not  alter  the  federal  system. 

' '  The  people  expect  this  and  no  more.  We  all  agree 
in  the  necessity  of  a  more  efl&cient  government — and  can 
not  this  be  done  ?  Although  my  state  is  small,  I  know 
and  respect  its  rights,  as  much,  at  least,  as  those  who 
have  the  honor  to  represent  any  of  the  larger  states."  * 

This  speech  seemed  to  check  the  use  of  severe  lan- 
guage, but  the  debate  continued  with  earnestness  until 
the  2d  of  July,  on  which  day  it  was  agreed  to  form  a 
committee,  to  try  to  fall  upon  some  plan,  to  bring  the  op- 
posing delegates  to  an  agreement  that  would  avoid  the 
calamity  of  having  to  adjourn  without  accomplishing  any 
result  by  the  convention.  While  but  a  few  of  the  dele- 
gates who  had  been  zealous  in  the  debate,  thought  any 
good  could  be  accomplished  by  such  a  committee,  an  ad- 
journment without  an  agreement  to  a  plan  of  govern- 
ment of  some  sort,  would  have  so  disastrous  an  effect 
that  they  agreed  to  the  appointment  of  the  committee  to 
consist  of  a  member  from  each  state,  which  was  chosen 
by  ballot  as  follows  :  Hon.  Mr.  Gerry,  of  Massachusetts  ; 


*  Elliott's  Debates  (Yate's  minutes),  vol.  i,  p.  471. 


CONSTITUTION    OF    1 787.  51 

Hon.  Mr.  Ellisworth,  of  Connecticut ;  Hon.  Mr.  Yates, 
of  New  York  ;  Hon.  Mr.  Patterson,  of  New  Jersey  ;  Hon. 
Mr.  Franklin,  of  Pennsylvania  ;  Hon.  Mr.  Bedford,  of 
Delaware ;  Hon.  Mr.  Martin,  of  Maryland ;  Hon.  Mr. 
Mason,  of  Virginia ;  Hon.  Mr,  Davie,  of  North  Caro- 
lina ;  Hon.  Mr,  Rutledge,  of  South  Carolina,  and  Hon, 
Mr.  Baldwin,  of  Georgia.  * 

After  the  appointment  of  said  committee  (which  was 
known  as  the  grand  committee,  so-called  because  of  its 
size),  but  which  proved  itself  to  be  truly  a  grand  com- 
mittee by  the  result  of  its  labors,  the  convention  then 
adjourned  to  the  5th  of  July, 

The  grand  committee  met  on  the  3d  of  July  and 
elected  the  Hon.  Mr.  Gerry,  chairman ;  and  soon  agreed 
on  the  terms  of  a  compromise  and  reported  the  same  on 
the  5th  of  July  as  follows  : 

' '  The  committee  to  whom  was  referred  the  eighth  res- 
olution reported  from  the  committee  of  the  whole  house, 
and  so  much  of  the  seventh  as  had  not  been  decided  on, 
submit  the  following  report : 

' '  That  the  subsequent  proposition  be  recommended  to 
the  convention  on  condition  that  both  shall  be  generally 
adopted. 

"That,  in  the  first  branch  of  the  legislature,  each  of 
the  states  now  in  the  union  be  allowed  one  member  for 
every  40,000  inhabitants  of  the  description  reported  in 
the  seventh  resolution  of  the  committee  of  the  whole 
house.  That  each  state  not  containing  that  number  shall 
be  allowed  one  member. 

"That  bills  for  raising  or  appropriating  money,  and 
for  fixing  salaries  of  the  oflScers  of  the  government  of  the 
"United  States,  shall  originate  in  the  first  branch  of  the 
legislature,  and  shall  not  be  altered  or  amended  by  the 


*  Elliott's  Debates,  vol.  i,  pp.  477-78. 


52  CONSTITUTION   OF   THE   UNITED   STATES. 

second  branch  ;  and  that  no  money  shall  be  drawn  from 
the  public  treasury  but  in  pursuance  of  appropriations  to 
be  originated  in  the  first  branch. 

"That  in  the  second  branch  of  the  legislature  each 
state  shall  have  an  equal  vote. ' '  * 

Hon.  Luther  Martin,  of  Maryland,  in  a  report  to  that 
state,  says,  there  were  three  parties  in  the  convention  ; 
that  one  party  favored  the  annihilation  of  the  states  and 
the  establishment  of  a  strong  monarchical  government ; 
however,  those  who  openly  expressed  these  views  were 
but  few,  though  there  were  others  who  did  not  express 
them  openly,  who  were  regarded  as  favoring  them. 

The  second  party  neither  favored  the  abolition  of  the 
states  nor  establishment  of  a  monarchy,  but  wanted  a 
government  that  would  give  their  own  states  an  advan- 
tage over  others. 

The  third  party  favored  amending  the  confederation 
so  as  enable  it  to  raise  the  necessary  means  to  pay  debts 
and  render  it  adequate  to  the  exigencies  of  government. f 

The  compromise  as  reported  by  the  grand  committee, 
was  accepted  by  some  of  the  delegates,  as  the  best  they 
could  secure  from  the  convention,  but  others  from 
each  side  withdrew  and  went  home.  Those  who  ap- 
proved it,  and  those  who  accepted  it  without  approval, 
proceeded  to  construct  the  constitution  on  the  basis  of 
the  compromise ;  and  but  for  the  irrepressible  conflict 
between  the  delegates  from  the  larger  and  smaller 
states,  they  would  have  had  but  little  difficulty.  But 
that  unyielding  conflict  again  tied  the  convention 
up,  on  providing  the  mode  in  which  the  senators 
should  vote ;  the  smaller  states,  insisting  that  the 
senators  should  vote  their  respective  states  as  a  unit  ; 
the  larger  states,    however,   insisted    that    the   senators 

*  Elliott's  Debates,  vol.  i,  p.  478.  t  Id.,  pp.  344-45- 


CONSTITUTION    OF    1 787.  53 

should  vote  individually  ;  the  mode  contended  for  by  the 
larger  states  was  carried  ;  and  Mr.  Madison,  in  a  letter 
to  Mr.  Sparks,  said  the  return  of  Mr.  Morris  to  the  con- 
vention was  opportune  to  cut  the  Gordian  knot  which 
gave  the  larger  states  their  plan.* 

It  is  evident  from  the  language  of  the  compromise,  and 
the  character  of  the  debates  preceding  the  same,  that  the 
committee  intended  that  the  respective  states  should  be 
voted  as  units  in  the  senate,  as  the  congress  did  by  the 
Articles  of  Confederation ;  and  when  that  pro\nsion  of 
the  compromise  was  set  at  naught  by  the  larger  states,  it 
greatly  irritated  the  delegates  from  the  smaller  states ; 
and  doubtless  to  appease  them,  it  was  provided  that,  in 
no  event  should  the  constitution  be  amended  so  as  to  de- 
prive any  state  of  equal  suffrage  in  the  senate,  without 
its  consent,  which  seems  to  have  satisfied  the  delegates 
from  the  smaller  states. 

The  convention  was  industriously  engaged  in  recon- 
structing the  constitution  so  as  to  conform  to  the  prin- 
ciples of  that  compromise,  from  the  5th  day  of  June  (the 
day  it  was  reported  by  the  grand  committee),  to  the  17th 
day  of  September,  1787 — on  which  day  the  convention 
completed  its  labors. 

On  said  17th  of  September,  1787,  the  constitution  hav- 
ing been  completed,  agreed  to  and  signed  by  the  delegates 
of  the  respective  states  present,  the  convention,  on  that 
day,  prepared  and  adopted  a  resolution,  to  go  w4th  the 
constitution,  in  its  report  of  that  instrument,  which  is  in 
words  and  figures  as  follows  : 

"IN   CONVENTION, 

"Monday,  September  ij,  178J. 
' '  Present —  T/ie  States  of  New  Hampshire,  Cojmectiait, 
Mr.  Hamilton  from  New  York,  New  Jersey,  Pennsylvania, 

*  Elliott's  Debates,  vol.  i,  page  507. 


54  CONSTITUTION   OF   THE   UNITED   STATES. 

Delaware,    Maryland,     Virginia,    North    Carolina,   South 
Carolina  and  Georgia. 

' '  Resolved,  That  the  preceding  constitution  be  laid  be- 
fore the  United  States,  in  congress  assembled,  and  that 
it  is  the  opinion  of  this  convention,  that  it  should  after- 
wards be  submitted  to  a  convention  of  delegates,  chosen 
in  each  state  by  the  people  thereof,  under  the  recom- 
mendation of  its  legislature,  for  their  assent  and  ratifi- 
cation ;  and  that  each  convention  assenting  to,  and 
ratifying  the  same,  should  give  notice  thereof  to  the 
United  States  in  congress  assembled. 

^'^  Resolved,  That  it  is  the  opinion  of  this  convention, 
that,  as  soon  as  the  conventions  of  nine  states  shall  have 
ratified  this  constitution,  the  United  States,  in  congress 
assembled,  should  fix  a  day  on  which  electors  should  be 
appointed  by  the  states  which  shall  have  ratified  the 
same,  and  a  day  on  which  electors  should  assemble  to 
vote  for  the  president,  and  the  time  and  place  for  commenc- 
ing proceedings  under  this  constitution.  That  after  such 
publication,  the  electors  should  be  appointed,  and  the 
senators  and  representatives  elected.  That  the  electors 
should  meet  on  the  day  fixed  for  the  election  of  the 
president,  and  should  transmit  their  votes  certified, 
signed,  sealed  and  directed,  as  the  constitution  requires, 
to  the  secretary  of  the  United  States  in  congress  as- 
sembled ;  that  the  senators  and  representatives  should 
convene  at  the  time  and  place  assigned ;  that  the 
senators  should  appoint  a  president  of  the  senate  for  the 
sole  purpose  of  receiving,  opening  and  counting,  the 
votes  for  president ;  and  that,  after  he  shall  be  chosen, 
the  congress,  together  with  the  president,  should,  with- 
out delay,  proceed  to  execute  this  constitution,.  By  the 
unanimous  order  of  the  convention. 

"  George  Washington,  President. 

"WiLUAM  Jackson,  Secretary.'''^ 

*  Elliott's  Debates,  vol.  i,  page  i6. 


CONSTITUTION    OF    1 787.  55 

Although  the  delegates  to  that  convention  were  ap- 
pointed by  the  respective  states  represented  in  it,  and 
derived  their  entire  authority  from  the  state  appointing 
them,  the  only  provision  in  the  Articles  of  Confederation 
that  authorized  the  same  to  be  altered,  required  that  all 
alterations  should  be  approved  by  the  congress  of  the 
United  States  and  afterwards  confirmed  by  the  legisla- 
tures of  all  the  states  ;  therefore  the  constitution  had  to 
be  reported  to  congress. 

Congress  approved  the  constitution  and  by  the  follow- 
ing resolution  referred  it  to  the  legislatures  of  the  states : 

''Resolved,  tmanhnotisly ,  That  the  said  report,  with  the 
resolutions  and  letter  accompanying  the  same,  be  trans- 
mitted to  the  several  legislatures,  in  order  to  be  sub- 
mitted to  a  convention  of  delegates  chosen  in  each  state 
by  the  people  thereof,  in  conformity  to  the  resolves  of 
the  convention  made  and  provided  in  that  case."  * 

In  conformity  with  said  resolution  the  legislatures  of 
the  respective  states  passed  acts  calling  conventions. 
The  several  state  conventions  ratified  the  constitution 
and  reported  its  actions  thereof  to  congress  as  follows  : 

Delaware  ratified  the  same  on  the  7th  of  December, 
1787. 

Pennsylvania  ratified  same  on  the  12th  of  December, 
1787. 

New  Jersey  ratified  same  on  the   18th  of  December, 

1787,  and  proposed  amendments  thereto. 
Connecticut  ratified  same  on  the  9th  of  January,  1788. 
Massachusetts  ratified  same  on  the  7th  of  February, 

1788,  and  proposed  amendments  thereto. 
Georgia  ratified  same  on  the  2d  of  January,  1788. 
Maryland  ratified  same  November,  1788, 

*  Elliott's  Debates,  vol.  1,  p.  319. 


56  CONSTITUTION   OF   THE   UNITED   STATES. 

South  Carolina  ratified  same  on  the  22d  of  May,  1788, 
and  proposed  amendments  thereto. 

New  Hampshire  ratified  same  on  the  21st  of  June, 
1788,  but  did  not  report  its  action  to  congress  until  the 
2d  of  July,  and  proposed  amendments  thereto. 

Virginia  ratified  the  same  on  the  26th  of  June,  1788, 
and  proposed  amendments  thereto. 

New  York  ratified  the  same  on  the  26th  of  July,  1788, 
and  proposed  amendments  thereto. 

New  Hampshire  being  the  ninth  state  to  ratify  the 
constitution,  when  its  report  to  congress  came  in  on  the 
2d  of  July,  1788,  on  motion  of  Mr.  Clark,  seconded  by 
Mr.  Edwards,  congress  ordered  that  the  ratification  of 
the  constitution  be  referred  to  a  committee  to  examine 
the  same,  and  report  an  act  to  congress  for  putting  the 
constitution  in  operation. 

On  that  motion  New  Hampshire,  Massachusetts,  Con- 
necticut, New  Jersey,  Marj-land,  Pennsylvania,  Virginia, 
South  Carolina,  and  Georgia  voted  j^ea  ;  Rhode  Island 
was  excused  and  New  York  was  divided,  Mr.  Yates  vot- 
ing nay  and  Mr.  Hamilton  yea  ;  and  an  act  of  congress 
was  reported  and  adopted  for  putting  the  constitution  in 
operation. 

North  Carolina  ratified  the  constitution  on  the  29th  of 
May,  1790,  and  proposed  amendments  thereto. 

Vermont  ratified  the  same  on  the  9th  of  February, 
1 79 1,  on  coming  into  the  union  after  the  amendments  to 
the  constitution  had  been  proposed  by  congress. 

The  first  congress  at  its  first  session  held  in  New  York 
on  the  4th  of  March,  1789,  proposed  twelve  articles  of 
amendments  to  the  constitution,  and  submitted  same  to 
the  legislatures  of  the  respective  states  for  ratification  ; 
the  respective  legislatures  took  action  thereon  as  follows  : 

New  Hampshire  agreed  to  all  except  the  second. 

New  York  agreed  to  all  except  the  second. 


CONSTITUTION   OF    1 787.  57 

Pennsylvania  agreed  to  all  except  the  first  and  second. 

Delaware  agreed  to  all  except  the  first. 

Maryland  agreed  to  all  of  them. 

South  Carolina  agreed  to  all  of  them. 

North  Carolina  agreed  to  all  of  them. 

Rhode  Island  agreed  to  all  of  them. 

Virginia  agreed  to  all  of  them. 

New  Jersey  agreed  to  all  except  the  second. 

Massachusetts,  Connecticut,  Georgia  and  Kentucky 
took  no  action  on  said  amendments,  although  Massachu- 
setts had  proposed  substantially  the  same  amendments  by 
its  convention  at  the  time  it  adopted  the  constitution. 

The  first  and  second  of  said  articles  of  amendment 
failing  to  receive  the  ratification  of  enough  of  the  states 
to  pass  them  into  the  constitution,  were  lost ;  but  the  re- 
maining ten  articles  of  amendment,  receiving  the  ratifi- 
cation of  ten  out  of  fourteen  states,  were  carried,  and 
duly  declared  to  be  parts  of  the  constitution. 

As  said  ten  articles  were  proposed  by  six  of  the  states 
in  convention,  at  the  time  each  of  these  states  ratified 
the  constitution,  and  were  proposed  by  the  first  congress 
during  its  first  session,  they  may  be  considered  as  part  of 
the  constitution  as  originallj^  adopted. 

The  changes  made  in  the  confederation  by  the  Consti- 
tution of  17S7  relate  more  to  the  mode  of  executing  the 
government  than  to  the  fundamental  principles  thereof. 

The  following  is  a  copy  of  the  constitution  with  its 
fifteen  amendments : 

THE  CONSTITUTION  OF  THE  UNITED  STATES. 

We,  the  People  of  the  United  States,  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  pro\ade  for  the  common  defense,  promote  the 
general  welfare,   and  secure   the  blessings  of  liberty  to 


58  CONSTITUTION   OF   THE   UNITED   STATES. 

ourselves  and  our  posterity,  do  ordain  and  establish  this 
Constitution  for  the  United  States  of  America. 

Article  I. 

SECTION   I. 

I .  All  legislative  powers  herein  granted  shall  be  vested 
in  a  congress  of  the  United  States,  which  shall  consist  of 
a  senate  and  house  of  representatives. 

SECTION   II. 

1.  The  house  of  representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the 
several  states ;  and  the  electors  in  each  state  shall  have 
the  qualifications  requisite  for  electors  of  the  most  numer- 
ous branch  of  the  state  legislature. 

2.  No  person  shall  be  a  representative  who  shall  not 
have  attained  to  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  state  in  which 
he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  appor- 
tioned among  the  several  states  which  may  be  included 
within  this  union,  according  to  their  respective  numbers, 
which  shall  be  determined  by  adding  to  the  whole  num- 
ber of  free  persons,  including  those  bound  to  service  for 
a  term  of  years  and  excluding  Indians  not  taxed,  three- 
fifths  of  all  other  persons.  The  actual  enumeration  shall 
be  made  within  three  years  after  the  first  meeting  of  the 
congress  of  the  United  States,  and  within  every  subse- 
quent term  of  ten  years,  in  such  manner  as  they  shall  by 
law  direct.  The  number  of  representatives  shall  not  ex- 
ceed one  for  every  thirty  thousand,  but  each  state  shall 
have  at  least  one  representative  ;  and  until  such  enumera- 
tion shall  be  made  the  state  of  New  Hampshire  shall  be  en- 
titled to  choose  three  ;  Massachusetts,  eight ;  Rhode  Island 


CONSTITUTION   OF    1 787.  59 

and  Providence  Plantations,  one  ;  Connecticut,  five  ;  New 
York,  six  ;  New  Jersey,  four ;  Pennsylvania,  eight ;  Dela- 
ware, one ;  Maryland,  six  ;  Virginia,  ten  ;  North  Caro- 
lina,   five  ;  South  Carolina,  five  ;  and  Georgia,  three. 

4.  When  vacancies  happen  in  the  representation  from 
any  state,  the  executive  authority  thereof  shall  issue 
writs  of  election  to  fill  up  such  vacancies. 

5.  The  house  of  representatives  shall  choose  their 
speaker  and  other  oflScers,  and  shall  have  the  sole  power 
of  impeachment. 

SECTION   III. 

1.  The  senate  of  the  United  States  shall  be  composed  of 
two  senators  from  each  state,  chosen  by  the  legislature 
thereof,  for  six  years ;  and  each  senator  shall  have  one 
vote. 

2.  Immediately  after  they  shall  be  assembled  in  con- 
sequence of  the  first  election,  they  shall  be  divided  as 
equally  as  may  be  into  three  classes.  The  seats  of  the 
senators  of  the  first  class  shall  be  vacated  at  the  expira- 
tion of  the  second  year ;  of  the  second  class,  at  the  ex- 
piration of  the  fourth  year  ;  and  of  the  third  class,  at  the 
expiration  of  the  sixth  year ;  so  that  one-third  may  be 
chosen  every  second  year ;  and  if  vacancies  happen,  by 
resignation  or  otherwise,  during  the  recess  of  the  legis- 
lature of  any  state,  the  executive  thereof  may  make 
temporary  appointments  until  the  next  meeting  of  the 
legislature,  which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  at- 
tained to  the  age  of  thirty  years,  and  been  nine  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  state  for  which  he  shall 
be  chosen. 

4.  The  vice-president  of  the  United  States  shall  be 
president  of  the  senate,  but  shall  have  no  vote  unless 
they  be  equally  divided. 


6o  CONSTITUTION   OF    THE;   UNITED   STATES. 

5.  The  senate  shall  choose  their  other  olBScers,  and  also 
a  president  pro  tempore,  in  the  absence  of  the  vice-presi- 
dent, or  when  he  shall  exercise  the  oflSce  of  president  of 
the  United  States. 

6.  The  senate  shall  have  the  sole  power  to  try  all  im- 
peachments. When  sitting  for  that  purpose,  they  shall 
be  on  oath  or  affirmation.  "When  the  president  of  the 
United  States  is  tried,  the  chief  justice  shall  preside  ; 
and  no  person  shall  be  convicted  without  the  concurrence 
of  two-thirds  of  the  members  present. 

7.  Judgment,  in  case  of  impeachment,  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification 
to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit 
under  the  United  States  ;  but  the  party  convicted  shall 
nevertheless  be  liable  and  subject  to  indictment,  trial, 
judgment,  and  punishment,  according  to  law. 

SECTION   IV. 

1.  The  times,  places,  and  manner  of  holding  elections 
for  senators  and  representative,  shall  be  prescribed  in 
each  state  by  the  legislature  thereof  ;  but  the  congress 
may,  at  any  time,  by  law,  make  or  alter  such  regula- 
tions, except  as  to  the  places  of  choosing  senators. 

2.  The  congress  shall  assemble  at  least  once  in  every 
year,  and  such  meeting  shall  be  on  the  first  Monday  irt 
December,  unless  they  shall  by  law  appoint  a  different  day. 

SECTION    V. 

I.  Each  house  shall  be  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  members ;  and  a 
majority  of  each  shall  constitute  a  quorum  to  do  busi- 
ness ;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner  and  under  such  penal- 
ties as  each  house  may  provide. 


CONSTITUTION    OF    1 787.  61 

2.  Each  house  may  determine  the  rules  of  its  proceed- 
ings, punish  its  members  for  disorderly  behavior,  and, 
with  the  concurrence  of  two-thirds,  expel  a  member. 

3.  Each  house  shall  keep  a  journal  of  its  proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
parts  as  may  in  their  judgment  require  secrecy  ;  and  the 
yeas  and  nays  of  the  members  of  either  house,  on  any 
question,  shall,  at  the  desire  of  one-fifth  of  those  present, 
be  entered  on  the  journal. 

4.  Neither  house  during  the  session  of  congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which  the 
two  houses  shall  be  sitting. 

SECTION  VI. 

1 .  The  senators  and  representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and 
paid  out  of  the  treasury  of  the  United  States.  They 
shall,  in  all  cases,  except  treason,  felony,  and  breach  of 
the  peace,  be  privileged  from  arrest  during  their  attend- 
ance at  the  session  of  their  respective  houses,  and  in  go- 
ing to  or  returning  from  the  same  ;  and  for  any  speech  or 
debate  in  either  house,  they  shall  not  be  questioned  in  any 
other  place. 

2.  No  senator  or  representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  civil  oflSce 
under  the  authority  of  the  United  States  which  shall 
have  been  created,  or  the  emoluments  whereof  shall  have 
been  increased,  during  such  time  ;  and  no  person  holding 
any  office  under  the  United  States  shall  be  a  member  of 
either  house  during  his  continuance  in  ofl&ce. 

SECTION   VII. 

I.  All  bills  for  raising  revenue  shall  originate  in  the 


62  CONSTITUTION   OF   THE  UNITED  STATES. 

house  of  representatives  ;  but  the  senate  may  propose  or 
concur  with  amendments,  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  house  of 
representatives  and  the  senate,  shall,  before  it  become  a 
law,  be  presented  to  the  president  of  the  United  States ; 
if  he  approve,  he  shall  sign  it ;  but  if  not,  he  shall  re- 
turn it,  with  his  objections,  to  that  house  in  which  it 
shall  have  originated,  who  shall  enter  the  objection  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  two-thirds  of  that  house  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  house,  by  which  it  shall  likewise 
be  reconsidered,  and  if  approved  by  two-thirds  of  that 
house,  it  shall  become  a  law.  But  in  all  such  cases,  the 
votes  of  both  houses  shall  be  determined  by  yeas  and 
nays,  and  the  names  of  the  persons  voting  for  and 
against  the  bill  shall  be  entered  on  the  journal  of  each 
house  respectively.  If  any  bill  shall  not  be  returned  by 
the  president  within  ten  days  (Sundays  excepted)  after 
it  shall  have  been  presented  to  him,  the  same  shall  be  a 
law  in  like  manner  as  if  he  had  signed  it,  unless  the  con- 
gress by  their  adjournment  prevent  its  return,  in  which 
case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote,  to  which  the  con- 
currence of  the  senate  and  house  of  representatives  may 
be  necessary,  except  on  a  question  of  adjournment,  shall 
be  presented  to  the  president  of  the  United  States ;  and 
before  the  same  shall  take  effect,  shall  be  approved  by 
him,  or  being  disapproved  by  him,  shall  be  repassed  by 
two-thirds  of  the  senate  and  house  of  representatives, 
according  to  the  rules  and  limitations  prescribed  in  the 
case  of  a  bill. 

SECTION   VIII. 

The  congress  shall  have  power — 

I.  To   lay  and  collect  taxes,  duties,  imposts,  and  ex- 


CONSTITUTION   OF    1 787.  63 

cises  ;  to  pay  the  debts  and  provide  for  the  common  de- 
fense and  general  welfare  of  the  United  States ;  but  all 
duties,  imposts,  and  excises,  shall  be  uniform  throughout 
the  United  States  : 

2.  To  borrow  money  on  the  credit  of  the  United 
States  : 

3.  To  regulate  commerce  with  foreign  nations,  and 
among  the  several  states,  and  with  the  Indian  tribes  : 

4.  To  establish  a  uniform  rule  of  naturalization,  and 
uniform  laws  on  the  subject  of  bankruptcies  throughout 
the  United  States  : 

5.  To  coin  money,  regulate  the  value  thereof,  and  of 
foreign  coin,  and  fix  the  standard  of  weights  and  meas- 
ures : 

6.  To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States  : 

7.  To  establish  post  offices  and  post  roads  : 

8.  To  promote  the  progress  of  science  and  useful  arts, 
by  securing  for  limited  times  to  authors  and  inventors  the 
exclusive  right  to  their  respective  writings  and  discov- 
eries : 

9.  To  constitute  tribunals  inferior  to  the  supreme 
court : 

10.  To  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offenses  against  the  laws  of 
nations  : 

11.  To  declare  war,  grant  letters  of  marque  and  re- 
prisal, and  make  rules  concerning  captures  on  land  and 
water  : 

12.  To  raise  and  support  armies,  but  no  appropriation 
of  money  to  that  use  shall  be  for  a  longer  term  than  two 
years  : 

13.  To  provide  and  maintain  a  na\^  : 

14.  To  make  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces  : 


64  CONSTITUTION   OF    THE   UNITED   STATES. 

15.  To  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  union,  suppress  insurrections,  and  repel 
invasions. 

16.  To  provide  for  organizing,  arming,  and  disciplin- 
ing the  militia,  and  for  governing  such  part  of  them  as 
may  be  employed  in  the  service  of  the  United  States,  re- 
serving to  the  states,  respectively,  the  appointment  of 
the  officers,  and  the  authority  of  training  the  militia  ac- 
cording to  the  discipline  prescribed  by  congress. 

17.  To  exercise  exclusive  legislation  in  all  cases  what- 
soever, over  such  district,  not  exceeding  ten  miles 
square,  as  may,  by  cession  of  particular  states,  and  the 
acceptance  of  congress,  become  the  seat  of  government 
of  the  United  States,  and  to  exercise  like  authority  over 
all  places  purchased  by  the  consent  of  the  legislature  of 
the  state  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dock-yards,  and  other  needful 
buildings ;  and, 

18.  To  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  constitution  in  the 
government  of  the  United  States,  or  in  any  department 
or  officer  thereof, 

SECTION   IX. 

1.  The  migration  or  importation  of  such  persons  as 
any  of  the  states  now  existing  shall  think  proper  to 
admit,  shall  not  be  prohibited  by  the  congress  prior  to 
the  year  one  thousand  eight  hundred  and  eight,  but  a 
tax  or  duty  may  be  imposed  on  such  importation,  not 
exceeding  ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when,  in  cases  of  rebellion  or  in- 
vasion, the  public  safety  may  require  it. 

3.  No  bill  of  attainder,  or  ex  post  facto  law,  shall  be 
passed. 


CONSTITUTION    OF    1 787.  65 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  un- 
less in  proportion  to  the  census  or  enumeration  hereinbe- 
fore directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  state.  No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one 
state  over  those  of  another  ;  nor  shall  vessels  bound  to  or 
from  one  state,  be  obliged  to  enter,  clear,  or  pay  duties 
in  another. 

6.  No  money  shall  be  drawn  from  the  treasury,  but 
in  consequence  of  appropriations  made  by  law ;  and  a 
regular  statement  and  account  of  the  receipts  and  ex- 
penditures of  all  public  money  shall  be  published  from 
time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United 
States,  and  no  person  holding  any  office  of  profit  or 
trust  under  them,  shall,  without  the  consent  of  the 
congress,  accept  of  any  present,  emolument,  office,  or 
title  of  any  kind  whatever,  from  any  king,  prince  or 
foreign  state. 

SECTION    X. 

1.  No  state  shall  enter  into  any  treaty,  alliance,  or 
confederation  ;  grant  letters  of  marque  or  reprisal ;  coin 
money  ;  emit  bills  of  credit ;  make  any  thing  but  gold 
and  silver  coin  a  tender  in  payment  of  debts  ;  pass  any 
bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts  ;  or  grant  any  title  of  nobility, 

2.  No  state  shall,  without  the  consent  of  the  congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  maj'  be  absolutely  necessary  for  executing  its  in- 
spection laws  ;  and  the  net  produce  of  all  duties  and  im- 
posts, laid  by  any  state  on  imports  or  exports,  shall  be 
for  the  use  of  the  treasury-  of  the  United  States,  and  all 
such  laws  shall  be  subject  to  the  revision  and  control  of 


66  CONSTITUTION   OF   THE  UNITED   STATES. 

the  congress.  No  state  shall,  without  the  consent  of 
congress,  lay  any  duty  of  tunnage,  keep  troops  or  ships 
of  war  in  time  of  peace,  enter  into  any  agreement  or 
compact  with  another  state,  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded,  or  in  such  im- 
minent danger  as  will  not  admit  of  delay. 

Article  II. 

SECTION   I. 

1.  The  executive  power  shall  be  vested  in  a  president 
of  the  United  States  of  America.  He  shall  hold  his 
office  during  the  term  of  four  years,  and,  together  with 
the  vice-president,  chosen  for  the  same  term,  be  elected 
as  follows : 

2.  Each  state  shall  appoint,  in  such  manner  as  the 
legislature  thereof  may  direct,  a  number  of  electors, 
equal  to  the  whole  number  of  senators  and  representa- 
tives to  which  the  state  may  be  entitled  in  the  congress  ; 
but  no  senator  or  representatives,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be 
appointed  an  elector. 

[3.  The  electors  shall  meet  in  their  respective  states, 
and  vote  by  ballot  for  two  persons,  of  whom  one  at  least 
shall  not  be  an  inhabitant  of  the  same  state  with  them- 
selves. And  they  shall  make  a  list  of  all  the  persons  voted 
for,  and  of  the  number  of  votes  for  each  ;  which  list  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of 
the  government  of  the  United  States,  directed  to  the 
president  of  the  senate.  The  president  of  the  senate 
shall,  in  the  presence  of  the  senate  and  house  of  repre- 
sentatives, open  all  the  certificates,  and  the  votes  shall 
then  be  counted.  The  person  having  the  greatest  num- 
ber of  votes  shall  be  president,  if  such  number  be  a  ma- 


CONSTITUTION   OF    1 787.  67 

jority  of  the  whole  number  of  electors  appointed  ;  and  if 
there  be  more  than  one  who  have  such  majority,  and 
have  an  equal  number  of  votes,  then  the  house  of  repre- 
sentatives shall  immediately  choose,  by  ballot,  one  of 
them  for  president ;  and  if  no  person  have  a  majority, 
then,  from  the  five  highest  on  the  list,  the  said  house 
shall,  in  like  manner,  choose  the  president.  But,  in 
choosing  the  president,  the  votes  shall  be  taken  by  states, 
the  representation  from  each  state  having  one  vote ;  a 
quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  states,  and  a  majority  of 
all  the  states  shall  be  necessary  to  a  choice.  In  every 
case,  after  the  choice  of  the  president,  the  person  having 
the  greatest  number  of  votes  of  the  electors  shall  be  the 
vice-president.  But  if  there  should  remain  two  or  more 
who  have  equal  votes,  the  senate  shall  choose  from  them, 
by  ballot,  the  vice-president.*] 

4.  The  congress  may  determine  the  time  of  chosing 
the  electors,  and  the  day  on  which  they  shall  give  their 
votes ;  which  day  shall  be  the  same  throughout  the 
United  States. 

5.  No  person,  except  a  natural  born  citizen,  or  a  citi- 
zen of  the  United  States  at  the  time  of  the  adoption  of 
this  constitution,  shall  be  eligible  to  the  office  of  presi- 
dent ;  neither  shall  any  person  be  eligible  to  that  office 
who  shall  not  have  attained  to  the  age  of  thirty-five 
years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

6.  In  case  of  the  removal  of  the  president  from  office, 
or  of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  de- 
volve on  the  vice-president,  and  the  congress  may,  by 
law,  provide  for  the  case  of  removal,  death,  resignation, 

*  Altered.     See  Amend.,  art.  12. 


68  CONSTITUTION   OF   THEJ  UNITED   STATES. 

or  inability,  both  of  the  president  and  vice-president,  de- 
claring what  officer  shall  then  act  as  president,  and  such 
officer  shall  act  accordingly,  until  the  disability  be  re- 
moved or  a  president  shall  be  elected. 

7.  The  president  shall,  at  stated  times,  receive  for  his 
services  a  compensation,  which  shall  neither  be  increased 
nor  diminished  during  the  period  for  which  he  shall  have 
been  elected,  and  he  shall  not  receive  within  that  period 
any  other  emolument  from  the  United  States,  or  any  of 
them. 

S.  Before  he  enter  on  the  execution  of  his  office,  he 
shall  take  the  following  oath  or  affirmation  : 

9.  "  I  do  solemnly  swear  (or  affirm)  that  I  will  faith- 
fully execute  the  office  of  president  of  the  United  States, 
and  will,  to  the  best  of  my  ability,  preserve,  protect,  and 
defend  the  constitution  of  the  United  States." 

SECTION   II. 

1.  The  president  shall  be  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia 
of  the  several  states  when  called  into  the  actual  service 
of  the  United  States  ;  he  may  require  the  opinion,  in 
writing,  of  the  principal  officer  in  each  of  the  executive 
departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices  ;  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  all  offenses  against  the  United 
States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  senate,  to  make  treaties,  provided  two- 
thirds  of  the  senators  present  concur  ;  and  he  shall  nom- 
inate, and  by  and  with  the  advice  and  consent  of  the 
senate,  shall  appoint  ambassadors,  other  public  ministers, 
and  consuls,  judges  of  the  supreme  court,  and  all  other 
officers  of  the  United  States,  whose  appointments  are  not 


CONSTITUTION    OF    1 787.  69 

herein  other^'ise  provided  for,  and  which  shall  be  estab- 
lished by  law.  But  the  congress  may,  by  law,  vest  the 
appointment  of  snch  inferior  officers  as  they  think  proper, 
in  the  president  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments. 

3.  The  president  shall  have  power  to  fill  up  all  vacan- 
cies that  may  happen  during  the  recess  of  the  senate,  by 
granting  commissions  which  shall  expire  at  the  end  of 
their  next  session. 

SECTION    III. 

I.  He  shall,  from  time  to  time,  give  to  the  congress  in- 
formation of  the  state  of  the  union,  and  recommend  to 
their  consideration  such  measures  as  he  shall  judge  neces- 
sary^ and  expedient ;  he  may,  on  extraordinary  occasions, 
convene  both  houses,  or  either  of  them,  and,  in  case  of 
disagreement  between  them,  with  respect  to  the  time  of 
adjournment,  he  may  adjourn  them  to  such  time  as  he 
shall  think  proper  ;  he  shall  receive  ambassadors  and 
other  public  ministers  ;  he  shall  take  care  that  the  laws 
be  faithfully  executed  ;  and  shall  commission  all  the 
oflBcers  of  the  United  States. 

SECTION   IV. 

I.  The  president,  vice-president,  and  all  civil  officers  of 
the  United  States,  shall  be  removed  from  office  on  im- 
peachment for,  and  conviction  of,  treason,  briber^',  or 
other  high  crimes  and  misdemeanors. 

Article  III. 

SECTION   I. 

I.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  supreme  court,  and  in  such  inferior  courts 
as  the  congress  may,  from  time  to  time,  ordain  and  estab- 
lish. The  judges,  both  of  the  supreme  and  inferior 
courts,  .shall  hold  their  offices  during  good  behavior  ;  and 


yo  CONSTITUTION    OF    THE    UNITED   STATES. 

shall,  at  stated  times,  receive  for  their  services  a  compen- 
sation which  shall  not  be  diminished  during  their  con- 
tinuance in  oflSce. 

SECTION   II. 

1.  The  judicial  power  shall  extend  to  all  cases  in  law 
and  equity,  arising  under  this  constitution,  the  laws  of 
the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority  ;  to  all  cases  affecting  am- 
bassadors, other  public  ministers  and  consuls  ;  to  all  cases 
of  admiralty  and  maritime  jurisdiction  ;  to  controversies 
to  which  the  United  States  shall  be  a  party  ;  to  contro- 
versies between  two  or  more  states  ;  betv/een  a  state  and 
citizens  of  another  state ;  between  citizens  of  different 
states  ;  between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states  ;  and  between  a 
state,  or  the  citizens  thereof,  and  foreign  states,  citizens 
or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  min- 
isters and  consuls,  and  those  in  which  a  state  shall  be  a 
party,  the  supreme  court  shall  have  original  jurisdiction. 
In  all  the  other  cases  before  mentioned,  the  supreme 
court  shall  have  appellate  jurisdiction,  both  as  to  law  and 
fact,  with  such  exceptions,  and  under  such  regulations, 
as  the  congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury  ;  and  such  trial  shall  be  held  in 
the  state  where  the  said  crimes  shall  have  been  com- 
mitted ;  but  when  not  committed  within  any  state,  the 
trial  shall  be  at  such  place  or  places  as  the  congress  may, 
by  law,  have  directed. 

SECTION   III. 

I.  Treason  against  the  United  States  shall  consist  only 
in  levydng  war  against  them,  or  in  adhering  to  their  ene- 
mies, giving  them  aid  and  comfort.  No  person  shall  be 
convicted  of  treason  unless  on  the  testimony  of  two  wit- 


CONSTITUTION    OF    1 787.  71 

nesses  to  the  same  overt  act,  or  on  confession  in  open 
court. 

2.  The  congress  shall  have  power  to  declare  the  pun- 
ishment of  treason,  but  no  attainder  of  treason  shall 
work  corruption  of  blood  or  forfeiture,  except  during  the 
life  of  the  person  attainted. 

Article  IV. 

SECTION    I. 

I.  Full  faith  and  credit  shall  be  given  in  each  state  to 
the  public  acts,  records,  and  judicial  proceedings  of  every 
other  state.  And  the  congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof. 

SECTION   II. 

1.  The  citizens  of  each  state  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  states. 

2.  A  person  charged  in  any  state  with  treason,  felony, 
or  other  crime,  who  shall  flee  from  justice,  and  be  found 
in  another  state,  shall,  on  demand  of  the  executive  author- 
ity of  the  state  from  which  he  fled,  be  delivered  up,  to 
be  removed  to  the  state  having  jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  state  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  be 
due. 

SECTION    III. 

I.  New  states  may  be  admitted  by  the  congress  into 
this  union  ;  but  no  new  state  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  state  ;  nor  any  state 
be  formed  by  the  junction  of  two  or  more  states,  or  parts 


72  CONSTITUTION   OF   THE   UNITED   STATES. 

of  States,  without  the  consent  of  the  legislature  of  the 
states  concerned,  as  well  as  of  the  congress. 

2.  The  congress  shall  have  power  to  dispose  of,  and 
make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United 
States  ;  and  nothing  in  this  constitution  shall  be  so  con- 
strued as  to  prejudice  any  claims  of  the  United  States, 
or  any  particular  state. 

SECTION  IV. 

I.  The  United  States  shall  guarantee  to  every  state  in 
this  union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion,  and  on  application 
of  the  legislature,  or  of  the  executive,  when  the  legisla- 
ture can  not  be  convened,  against  domestic  violence. 

Article  V. 
I.  The  congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 
constitution,  or,  on  the  application  of  the  legislatures  of 
two-thirds  of  the  several  states,  shall  call  a  convention 
for  proposing  amendments,  which,  in  either  case,  shall 
be  valid,  to  all  intents  and  purposes,  as  part  of  this  con- 
stitution, when  ratified  by  the  legislatures  of  three-fourths 
of  the  several  states,  or  by  conventions  in  three-fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may 
be  proposed  by  the  congress  ;  provided,  that  no  amend- 
ment which  may  be  made  prior  to  the  year  one  thousand 
eight  hundred  and  eight,  shall  in  any  manner  affect  the 
first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article  ;  and  that  no  state,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  senate. 

Article  VI. 
I.  All  debts  contracted  and  engagements  entered  into, 
before  the  adoption  of  this  constitution,  shall  be  as  valid 


CONSTITUTION   OF    1 787.  73 

against  the  United  States  under  this  constitution  as  under 
the  confederation. 

2.  This  constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land  ;  and 
the  judges  in  every  state  shall  be  bound  thereby,  any- 
thing in  the  constitution  or  laws  of  any  state  to  the  con- 
trary notwithstanding. 

3.  The  senators  and  representatives  before  mentioned, 
and  the  members  of  the  several  state  legislatures,  and  all 
executive  and  judicial  ofi&cers,  both  of  the  United  States 
and  of  the  several  states,  shall  be  bound  by  oath  or  af- 
firmation, to  support  this  constitution  ;  but  no  religious 
test  shall  ever  be  required  as  a  qualification  to  any  ofi&ce 
or  public  trust  under  the  United  States. 

Article  VII. 

I.  The  ratification  of  the  conventions  of  nine  states, 
shall  be  sufficient  for  the  establishment  of  this  constitu- 
tion between  the  states  so  ratifying  the  same. 

Done  in  Convention,  by  the  unanimous  consent  of  the 
states  present,  the  seventeenth  da}'  of  September,  in 
the  year  of  our  Lord  one  thousand  seven  hundred  and 
eighty-seven,  and  of  the  Independence  of  the  United 
States  of  America  the  twelfth.  In  witness  whereof, 
we  have  hereunto  subscribed  our  names. 

GEORGE  WASHINGTON,  President, 

and  deputy  from  Virginia. 

New  Hampskife. — John  Langdon,  Nicholas  Oilman. 
Massachusetts. — Nathaniel  Gorham,  Rufus  King. 
Co7i7iecticut. — William   Samuel   Johnson,   Roger   Sher- 
man. 

New  York. — Alexander  Hamilton. 


74  CONSTITUTION   OF  THE   UNITED   STATES. 

New  Jersey. — William  Livingston,  David  Brearly,  Will- 
iam Patterson,  Jonathan  Dayton. 

Peiinsylvania. — Benjamin  Franklin,  Thomas  Mifflin, 
Robert  Morris,  George  Clymer,  Thomas  Fitzsimons, 
Jared  Ingersoll,  James  Wilson,  Gouverneur  Morris. 

Delaware. — George  Read,  Gunning  Bedford,  Jr.,  John 
Dickinson,  Richard  Bassett,  Jacob  Broom. 

Maryland. — ^James  McHenr}-,  Daniel  of  St.  Thomas 
Jenifer,  Daniel  Carroll. 

Virgmia. — John  Blair,  James  Madison,  Jr. 

North  Carolina.  —  William  Blount,  Richard  Dobbs 
Spaight,  Hugh  Williamson. 

South  Carolina. — John  Rutledge,  Charles  Cotesworth 
Pinckney,  Charles  Pinckney,  Pierce  Butler. 

Georgia. — William  Few,  Abraham  Baldwin. 
Attest :  William  Jackson,  Secretary. 

AMENDMENTS  TO  THE  CONSTITUTION. 

Article  I. 

I .  Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof  ; 
or  abridging  the  freedom  of  speech  or  of  the  press ;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to  pe- 
tition the  government  for  a  redress  of  grievances. 

Article  II. 

I.  A  well-regulated  militia  being  necessary  to  the  se- 
curity of  a  free  state,  the  right  of  the  people  to  keep  and 
bear  arms  shall  not  be  infringed. 

Article  III. 
I.  No  soldier  shall,  in  time  of  peace,  be  quartered  in 


CONSTITUTION    OF    1 787.  75 

any  house  without  the  consent  of  the  owner,  nor  in  time 
of  war  but  in  a  manner  to  be  prescribed  by  law. 

Article  IV. 

I .  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  warrants  shall 
issue  but  upon  probable  cause,  supported  by  oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

Article  V. 

I .  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  in- 
dictment of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia  when  in  actual  ser- 
vice, in  time  of  war  or  public  danger  ;  nor  shall  any  per- 
son be  subject,  for  the  same  offense,  to  be  twice  put  in 
jeopardy  of  life  or  limb  ;  nor  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself  ;  nor  be  de- 
prived of  life,  liberty,  or  property,  without  due  process 
of  law  ;  nor  shall  private  property  be  taken  for  public  use 
without  just  compensation. 

Article  VI. 

I.  In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial  by  an  impartial 
jury  of  the  state  and  district  wherein  the  crime  shall  have 
been  committed,  which  district  shall  have  been  previously 
ascertained  by  law,  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation  ;  to  be  confronted  with  the  wit- 
nesses against  him  ;  to  have  compulsory  process  for  ob- 
taining witnesses  in  his  favor ;  and  to  have  the  assist- 
ance of  counsel  for  his  defense. 


76  CONSTITUTION   OF    THE   UNITED   STATES. 

ARTICI.E   VII. 

I.  In  suits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved  ;  and  no  fact  tried  by  a  jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United 
States  than  according  to  the  rules  at  the  common  law. 

Article  VIII. 
I.  Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,   nor  cruel  and   unusual   punishments  in- 
flicted. 

Article  IX. 

I.  The  enumeration  in  the  constitution  of  certain 
rights  shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people. 

Article  X. 
I .  The  powers  not  delegated  to  the  United  States  by 
the  constitution,  nor  prohibited  by  it  to  the  states,  are  re- 
served to  the  states  respectively,  or  to  the  people. 

Article  XI. 

I.  The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  state,  or  by  citizens  or  subjects  of 
any  foreign  state. 

Article  XII. 

I.  The  electors  shall  meet  in  their  respective  states, 
and  vote  by  ballot  for  president  and  vice-president, 
one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the 
same  state  with  themselves  ;  they  shall  name   in  their 


CONSTITUTION   OF    1 787.  77 

ballots  the  person  voted  for  as  president,  and  in  distinct 
ballots  the  person  voted  for  as  vice-president ;  and  they 
shall  make  distinct  lists  of  all  persons  voted  for  as 
president,  and  of  all  persons  voted  for  as  vice-president, 
and  of  the  number  of  votes  for  each,  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of 
the  government  of  the  United  States,  directed  to  the 
president  of  the  senate  ;  the  president  of  the  senate  shall, 
in  the  presence  of  the  senate  and  house  of  representa- 
tives, open  all  the  certificates,  and  the  votes  shall  then  be 
counted  ;  the  person  having  the  greatest  number  of  votes 
for  president,  shall  be  the  president,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed  ;  and 
if  no  person  have  such  majority,  then  from  the  persons 
having  the  highest  numbers,  not  exceeding  three,  on  the 
list  of  those  voted  for  as  president,  the  house  of  repre- 
sentatives shall  choose  immediately,  by  ballot,  the  presi- 
dent. But  in  choosing  the  president,  the  votes  shall  be 
taken  by  states,  the  representation  from  each  state  hav- 
ing one  vote ;  a  quorum  for  this  purpose  shall  consist  of 
a  member  or  members  from  two-thirds  of  the  states,  and 
a  majority  of  all  the  states  shall  be  necessary  to  a  choice. 
And  if  the  house  of  representatives  shall  not  choose  a 
president,  whenever  the  right  of  choice  shall  devolve 
upon  them,  before  the  fourth  day  of  March  next  follow- 
ing, then  the  vice-president  shall  act  as  president,  as  in 
the  case  of  the  death  or  other  constitutional  disability  of 
the  president. 

2.  The  person  having  the  greatest  number  of 
votes  as  vice-president,  shall  be  the  vice-president,  if 
such  number  be  a  majority  of  the  whole  number  of 
electors  appointed  ;  and  if  no  person  have  a  majority, 
then  from  the  two  highest  numbers  on  the  list,  the  sen- 
ate shall   choose   the  vice-president ;  a  quorum   for  the 


78  CONSTITUTION   OF   THE   UNITED   STATES. 

purpose  shall  consist  of  two-thirds  of  the  whole  number 
of  senators,  and  a  majority  of  the  whole  number  shall 
be  necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office 
of  president,  shall  be  eUgible  to  that  of  vice-president  of 

the  United  States. 

Article   XIII. 

1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have 
been  duly  con\dcted,  shall  exist  within  the  United  States, 
or  any  place  subject  to  their  jurisdiction. 

2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

Article    XIV. 

1.  All  persons  bom  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States,  and  of  the  state  wherein  they  reside.  No 
state  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States  ;  nor  shall  any  state  deprive  any  person  of  life, 
Hberty,  or  property,  without  due  process  of  law,  nor  deny 
to  any  person  within  its  jurisdiction,  the  equal  protection 
of  the  laws. 

2.  Representatives  shall  be  apportioned  among  the  sev- 
eral states  according  to  their  respective  numbers,  count- 
ing the  whole  number  of  persons  in  each  state,  excluding 
Indians  not  taxed.  But  when  the  right  to  vote  at  any 
election  for  choice  of  electors  for  president  and  vice- 
president  of  the  United  States,  representatives  in  con- 
grees,  the  executive  and  judicial  officers  of  a  state,  or 
the  members  of  the  legislature  thereof,  is  denied  to  any 
of  the  male  inhabitants  of  such  state  being  twenty-one 
years  of  age,  and  citizens  of  the  United  States,  or  in  any 


CONSTITUTION    OF    1 787.  79 

way  abridged,  except  for  participation  in  rebellion  or 
other  crime,  the  basis  of  representation  therein  shall  be 
reduced  in  the  proportion  which  the  number  of  such  male 
citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  state. 

3.  No  person  shall  be  a  senator,  or  representative  in 
congress,  or  elector  of  president  and  vice-president,  or 
hold  any  office,  civil  or  military,  under  the  United  States, 
or  under  any  state,  who,  having  previously  taken  an  oath 
as  a  member  of  congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member  of  any  state  legislature,  or  as  an 
executive  or  judicial  officer  of  any  state,  to  support  the 
Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid 
and  comfort  to  the  enemies  thereof  ;  but  congress  may, 
by  a  vote  of  two-thirds  of  each  house,  remove  such  dis- 
ability. 

4.  The  validity  of  the  public  debt  of  the  United  States 
authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing  in- 
surrection or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  state  shall  assume  or 
pay  any  debt  or  obligation  incurred  in  aid  of  insurrection 
or  rebellion  against  the  United  States,  or  any  claim  for 
the  loss  or  emancipation  of  any  slave  ;  but  all  such  debts, 
obligations,  and  claims,  shall  be  held  illegal  and  void. 

5.  The  congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article. 

Article  XV. 
I.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or 
by  any  state  on  account  of  race,  color,  or  previous  con- 
dition of  servitude. 


8o  CONSTITUTION   OF   THK   UNITED   STATES. 

2.  The  congress  shall  have  power  to  enforce  this  arti- 
cle by  appropriate  legislation.* 


It  will  be  observed  that,  by  the  fifth  article  of  the  con- 
stitution, the  legislatures  may  demand  a  convention  sim- 
ilar to  the  one  that  made  the  Constitution  of  1787,  to  pro- 
pose amendments  to  the  constitution  whenever  the  legis- 
latures of  two-thirds  of  the  states  shall  concur  in  its  call, 
and  the  congress  is  obliged  to  call  it,t  and  whatever  amend- 
ment may  be  proposed  by  that  convention,  when  ratified 
by  conventions  in  three-fourths  of  the  states,  shall  be- 
come parts  of  the  constitution,  notwithstanding  such 
amendments  may  be  opposed  by  every  department  and 
officer  of  the  United  States. 

This  provision,  together  with  that  of  making  the  sen- 
ate represent  the  municipal  corporations  of  the  several 
states  in  the  congress  of  the  United  States,  clearly  re- 
tains the  governmental  authority  of  the  several  states,  as 
members  of  the  more  perfect  union  of  1787  ;  and  the 
people  of  the  several  states,  being  represented  by  the 
members  of  the  house  of  representatives  in  the  congress, 
clearly  shows  that  the  more  perfect  union  consists  of  a 


*  The  first  ten  of  the  foregoing  amendments  were  proposed 
at  the  first  session  of  the  first  congress  held  under  the  constitution  ; 
the  eleventh  amendment  was  proposed  at  the  second  session  of  the 
third  congress  ;  the  twelfth,  at  the  first  session  of  the  eight  con- 
gress ;  the  thirteenth,  at  the  second  session  of  the  thirty-eighth 
congress  ;  the  fourteenth,  at  the  first  session  of  the  thirty  ninth  con- 
gress ;  and  the  fifteenth,  at  the  third  session  of  the  fortieth  con- 
gress, and  were  all  adopted  by  the  number  of  states  required  by  the 
fifth  article  of  the  original  constitution.  The  thirteenth  amend- 
ment was  adopted  December  18,  A.  D.  1865  ;  the  fourteenth,  July 
20,  1868,  and  the  fifteenth,  March  30,  1870. 

I  Letter  85,  Federalist,  Hamilton,  Story's  Com.  Con.  1830. 


CONSTITUTION    OF    1 787.  8 1 

union  of  the  people  of  the  respective  states  as  separate 
societies  of  people,  and  a  union  of  the  governmental  au- 
thority of  the  respective  states  ;  that,  therefore,  the  con- 
federation was  not  displaced  by  the  new  union  of  1787, 
but  was  retained  and  added  to  by  the  new  union,  so  as  to 
make  it  adequate  to  the  exigencies  of  government. 


82  CONSTITUTION   OF   THE   UNITED   STATES. 

CHAPTER   III. 

CHARACTER   OF   THE   GOVERNMENT. 


The  Preamble  to  the  Constitution: 

"We,  the  people  of  the  United  States,  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defense,  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to 
ourselves  and  our  posterity,  do  ordain  and  establish  this 
Constitution  for  the  United  States  of  America. ' ' 

This  preamble  has  been  made  the  basis  for  greater 
contrariety  in  the  interpretation  of  the  constitution  than 
any  other  part  of  that  instrument. 

Able  statesmen,  and  the  Supreme  Court  of  the  United 
States,  contend  that  the  preamble  should  be  taken  lit- 
erally, and  that,  when  so  taken,  it  shows  that  the  people 
of  the  United  States  ordained  and  established  the  consti- 
tution, and  also  claim  that  the  United  States  was  changed 
from  a  confederation  into  a  sovereign  government. 

There  are  others  who  claim  that  the  states  were  never 
free  and  sovereign  states ;  on  the  contrary,  that,  even 
while  the  states  were  but  colonies,  existing  under  their 
British  charters,  they  derived  their  powers  from  the  same 
common  sovereign  authority,  and  through  that  authority 
were  connected  as  one  people ;  therefore  deny  that  the 
people  of  the  several  colonies  were  ever  a  separate  people. 

This  class  of  statesmen  and  commentators  also  claim 
that  it  was  the  people  in  the  aggregate  of  the  United 
States  who  inaugurated  the  revolutionary  war  of  1776, 
and  that  they  won  their  independence  as  one  people. 

It  is  also  claimed  by  as  able  statesmen  and  commenta- 


CHARACTER    OF   THK    GOVERNMENT.  83 

tors,  that  each  colony  had  a  separate  existence  under  its 
British  charter,  and  by  its  own  act  separated  from  England, 
and  that,  as  each  threw  off  its  ser^ntude  to  that  kingdom, 
the  sovereignty  thereof  devolved  upon  the  people  of  that 
particular  colony,  who  constructed  a  charter  for  the  gov- 
ernment thereof,  to  derive  its  powers  from  themselves  as 
the  sole  sovereign  authority  ;  that  charter  they  called  a 
constitution,  and  expressly  reser\'ed  to  themselves  the 
sole  authority  to  alter  or  abolish  the  same  at  will.  And 
in  the  organization  of  the  union  under  the  Articles  of 
Confederation,  sovereignty  was  expressly  reserved  to  the 
states. 

They  also  claim  that  the  people  of  the  several  states, 
acting  as  different  societies  of  people,  concurred  in  the 
constitution  without  changing  the  character  of  the  gov- 
ernment from  a  confederacy,  and  without  the  people  of 
the  respective  states  surrendering  their  authority  to  any 
extent,  by  adopting  the  Constitution  of  1787  ;  but,  to  the 
contrary,  the  Articles  of  Confederation  were  simply 
amended,  so  as  to  increase  the  powers  of  the  confed- 
eracy, to  make  it  equal  to  the  exigencies  of  government, 
and  to  better  preserve  the  union. 

The  strongest  argument  that  may  be  conveniently 
found  by  general  readers,  in  favor  of  the  United  States 
being  a  nation  with  sovereign  governmental  powers  is 
contained  in  the  decision  of  the  Supreme  Court  of  the 
United  States. 

That  court,  in  the  case  of  Chisholm  v.  The  State  of 
Georgia,  decided,  in  1792,*  by  a  divided  court,  that  the 
United  States  is  a  sovereign  nation  and  government,  to 
authorize  it  to  take  jurisdiction  of  the  parties  and  the 

*  Reported  in  2  Dall.  419. 


84  CONSTITUTION   OF    THEJ   UNITED   STATES. 

subject  of  the  action.  That  ruling  of  the  court  caused 
an  amendment  to  the  constitution,  declaring  that  the 
constitution  should  not  be  so  construed  as  to  give  juris- 
diction to  the  federal  courts,  of  actions  against  any  of 
the  states,  by  citizens  of  another  state,  or  subjects  of  a 
foreign  state.* 

England  under  the  heptarchy  constituted  a  federal 
government,  but  the  kingdoms  were  each  recognized  as 
containing  sovereignty  within  itself. 

Every  confederacy  must  be  composed  of  sovereign 
states  or  nations,  and  the  confederacy  must  have  control 
of  that  class  of  powers  necessary  to  maintain  the  govern- 
ment itself,  and  its  general  welfare,  so  that  it  will  be 
able  to  protect  the  component  parts  against  each  other 
and  against  the  outside  world ;  its  forces,  therefore, 
must  be  superior  to  those  of  the  component  parts ;  hence 
in  any  contest  of  authority  between  the  central  govern- 
ment and  either  of  its  constituent  parts,  the  central  gov- 
ernment will  always  prevail ;  consequently,  under  the 
natural  inclination  of  all  governments  to  increase  their 
powers,  the  sovereign  authority  of  the  petty  kingdoms  of 
the  heptarchy  were  absorbed  by  the  great  kingdom. 

The  Irish  republic  was  also  federal  in  character,  and 
in  like  manner  the  authority  of  the  component  parts 
were  absorbed  by  the  central  authority. 

And  so  it  has  been  with  all  confederacies  that  have  ex- 
isted before  the  establishment  of  the  United  States,  which 
all  will  admit  still  consists  of  a  union  of  states  having 
reserved  powers ;  to  which  extent,  at  least,  it  is  federal 
in  character.  Some  who  advocate  the  sovereignty  of 
the  states  claim  that  that  authority  resides  in  the  people 
of   the   states,    and    deny   that   any   sovereignty   exists 


*  nth  Art.  Amendment. 


CHARACTER    OF   THE    GOVERNMENT.  85 

either  in  the  United  States  government,  or  in  the  gov- 
ernment of  the  states,  though  they  concede  that  each  is 
authorized  to  use  such  sovereign  forces  as  may  be  neces- 
sary to  enable  it  to  discharge  its  corporate  duties  and 
trusts  as  agent  of  the  sovereign  people. 

To  hold,  as  the  supreme  court  does,  that  the  govern- 
ment of  the  United  States,  itself,  is  sovereign  to  the  ex- 
tent of  the  objects  and  powers  committed  to  it,  and  that 
the  state  governments  are  sovereign  to  the  extent  of  the 
objects  and  powers  committed  to  them,  practically  re- 
vives the  views  of  the  English  Heptarchy,  and  applies 
that  system  to  this  country',  in  total  disregard  of  the 
great  American  principle  of  retaining  the  sovereignty  in 
the  people,  as  shown  in  the  first  chapter  of  this  review. 

In  the  case  of  Martin  v.  Hunter's  Lessee,*  which  was 
taken  from  the  court  of  appeals  of  Virginia  (it  being  the 
court  of  last  resort  of  that  state),  the  Supreme  Court  of 
the  United  States  again  decided  that  the  United  States 
was  a  sovereign  nation  to  authorize  that  court  to  take 
jurisdiction  of  the  parties  and  subject  of  the  action,  and 
reversed  the  ruling  of  the  Virginia  court  of  appeals. 
But  when  the  case  was  sent  back  to  the  Virginia  court, 
with  the  mandate  of  the  supreme  court  to  render  judg- 
ment in  accordance  with  the  supreme  court's  opinion,  the 
judges  of  the  Virginia  court,  in  separate  opinions,  unani- 
mously agreed  that  no  federal  question  was  involved  in 
the  case,  and  refused  to  obey  the  mandate  of  the  supreme 
court.  The  case  was  again  taken  to  the  supreme  court. 
On  this  second  appeal,  the  supreme  court  adhered  to  its 
former  opinion,  and  announced  that,  if  the  state  court 
persisted  in  refusing  to  obey  the  supreme  court's  man- 
date, that  it  could  send  its  marshals  out  to  execute  its 
w^rits,  but,   fortunately  for  the  country,  the  parties  set- 

*  Reported  in  i  Wheaton,  304. 


86  CONSTITUTION   OF   THE   UNITED   STATES. 

tied  the  case  among  themselves,  without  forcing  the  col- 
lision between  the  federal  and  state  courts. 

In  the  case  of  McCulloch  v.  State  of  Maryland.*  the 
question  was,  whether  that  state  could  tax  the  United 
States  bank,  which  brought  into  question  the  vahdity  of 
the  charter  of  the  bank,  the  state  of  Maryland  denying  au- 
thority in  the  congress  to  grant  the  charter,  there  being 
no  power  within  the  letter  of  the  constitution  authorizing 
congress  to  charter  banks.  The  supreme  court  held  the 
United  States  to  be  a  sovereign  nation,  and  that  the 
power  to  charter  banks  was  incident  to  that  sovereign 
authority.  Having  reached  the  conclusion  that  the  char- 
ter was  valid,  that  court  went  on,  and  held  that  the 
power  of  a  state  to  tax  a  bank  involved  the  power  to  de- 
stroy it;  therefore  refused  the  state  of  Maryland  the 
right  to  tax  the  bank.f 

When  the  charter  of  that  bank  was  about  to  expire, 
the  congress  sought  to  renew  it  by  re-enacting  the 
charter;  but  President  Jackson  vetoed  it. 

The  president  was  urged  by  the  friends  of  the  bank  to 
approve  it,  claiming  that  the  supreme  court  having  de- 
cided that  the  congress  had  the  constitutional  authority 
to  charter  the  bank,  that  his  veto  under  the  circum- 
stances would  be  setting  up  his  judgment  against  that 
of  the  congress  on  a  question  of  policy.  But  the 
president  denying  the  supreme  court's  authority  to  in- 
terpret the  constitution  for  him,  and  claiming  that  each 
department  must  interpret  that  instrument  for  itself,  and 
that  his  oath  required  him  to  execute  the  constitution  as 
he  understood  it,  and  not  as  somebody  else  might  tell 
him  ;  he,  therefore,  vetoed  the  re-charter  on  the  ground 
of  its  being  unconstitutional. 

It  is,  however,  not  the  power  of  congress  to  charter 

*  Reported  in  4  Wheaton,  316.  f  4  Wheaton,  316. 


CHARACTER    OF   THE    GOVERNMENT.  87 

banks  that  I  wish  to  consider  in  this  connection,  but  to 
show  that  the  judges  of  the  Supreme  Court  of  the  United 
States  are  like  the  judges  of  the  courts  of  ever>'  other 
country,  inclined  to  augment  the  powers  of  the  govern- 
ment of  which  they  constitute  a  part. 

As  the  sovereignty  of  the  United  States  was  more  ex- 
tensively discussed  in  the  case  of  McCulloch  v.  Marj-land, 
I  deem  it  advisable  to  give  some  extracts  from  the  reason- 
ing of  the  supreme  court  on  the  question.  That  court 
said  : 

* '  The  convention  which  framed  the  constitution  was 
indeed  elected  by  the  state  legislatures.  But  the  instru- 
ment when  it  came  from  their  hands  was  a  mere  proposal 
without  obligation  or  pretension  to  it. 

* '  It  was  reported  to  the  then  existing  congress, 
by  the  convention,  by  congress,  and  by  the  state  legisla- 
tures, the  instrument  was  submitted  to  the  people.  They 
acted  upon  it  in  the  only  manner  in  which  they  can  act 
safely,  effectively  and  wisely  on  such  a  subject,  by  as- 
sembling in  convention.  It  is  true  they  assembled  in 
their  several  states,  and  where  else  should  they  have  as- 
sembled ? 

"  No  political  dreamer  was  ever  wild  enough  to  think 
of  breaking  down  the  lines  which  separate  the  states  and 
of  compounding  the  American  people  into  one  common 
mass.  Of  consequence  when  they  act,  they  act  in  their 
states.  But  the  measures  they  adopt  do  not  on  that  ac- 
count cease  to  be  the  measures  of  the  people  themselves, 
or  become  the  measures  of  the  state  governments. 

' '  From  these  conventions  the  constitution  derives  its 
whole  authority.  The  government  proceeds  directly 
from  the  people,  'ordained  and  established  in  the  name 
of  the  people.'     .     . 

' '  The  assent  of  the  states  in  their  sovereign  capacity 
is  implied  in  calling  the  convention,  and  thus  submitting 


88  CONSTITUTION   OF   THB   UNITED   STATES. 

that  instrument  to  the  people.  It  has  been  said  that  the 
people  had  already  surrendered  all  their  power  to  the 
state  sovereignty  and  had  nothing  more  to  give. 

"But,  surely,  the  question  whether  they  may  resume 
and  modify  the  powers  granted  to  government  does  not 
remain  to  be  settled  in  this  country.  Much  more  might 
the  legitimacy  of  the  general  government  be  doubted  had 
it  been  created  by  the  states. 

' '  The  powers  delegated  to  the  state  sovereignties  were 
to  be  exercised  by  themselves,  not  by  a  distinct  and  inde- 
pendent sovereignty  created  by  themselves, 

' '  To  the  formation  of  a  league  such  as  was  the  confed- 
eration, the  sovereignties  were  certainly  competent.  But 
when  '  in  order  to  form  a  more  perfect  union  '  was  neces- 
sary to  change  this  alliance  into  an  effective  government 
possessing  great  and  sovereign  powers,  and  acting 
directly  on  the  people,  the  necessity  of  referring  it  to 
the  people  and  of  deriving  its  powers  directly  from 
them,  was  felt  and  acknowledged  by  all. 

"The  government  of  the  union  then  (whatever  may 
be  the  influence  of  this  fact  on  the  case)  is  emphatically 
and  truly  a  government  of  the  people.  In  form  and  sub- 
stance it  emanates  from  them.  Its  powers  are  granted 
by  them,  and  for  their  benefit. 

' '  This  government  is  acknowledged  to  be  one  of  enum- 
erated powers. 

"The  government  of  the  United  States,  then,  though 
limited  in  its  powers,  is  supreme  ;  and  its  laws,  when 
made  in  pursuance  of  the  constitution,  form  the  supreme 
law  of  the  land,  any  thing  in  the  constitution  or  laws  of 
any  state  to  the  contrary  notwithstanding. 

"Among  the  enumerated  powers,  we  do  not  find  that 
of  establishing  a  bank  or  creating  a  corporation.  But 
there  is  no  phase  in  the  instrument,  which  like  the  Ar- 
ticles of  Confederation,   excludes  incidental  or  implied 


CHARACTER    OF    THE    GOVERNMENT,  89 

powers,  and  which  requires  that  every  thing  granted  shall 
be  expressly  and  minutely  described. 

' '  The  creation  of  a  corporation,  it  is  said,  appertains  to 
sovereignty.  This  is  admitted.  But  to  what  portion  of 
sovereignty  does  it  belong  ?  Does  it  belong  to  one  more 
than  to  another?  In  America  the  powers  of  sovereignty 
are  divided  between  the  government  of  the  union  and 
those  of  the  states.  They  are  each  sovereign  with  re- 
spect to  the  objects  committed  to  it,  and  neither  is 
sovereign  with  respect  to  the  objects  committed  to  the 
other." 

If  the  learned  court  in  saying,  ' '  the  government  of  the 
union  is  emphatically  and  truly  a  government  of  the 
people,  in  form  and  substance,  it  emanates  from  them,  its 
powers  are  granted  by  them,  and  for  their  benefit;" 
means  to  say  its  powers  emanate  from,  and  were  granted 
by,  the  people  of  the  United  States,  then  it  is  difficult  to 
understand  what  that  court  means,  in  saying  no  political 
dreamer  ever  supposed  the  American  people  were  com- 
pounded into  one  mass,  for,  if  they  acted  in  mass,  or  as 
one  people  in  ordaining  and  establishing  the  constitution, 
they  were  compounded  into  one  mass  by  that  act  alone. 

Again,  just  what  was  meant  by  that  court  in  saj'ing, 
"but  there  is  no  phrase  in  the  instrument,  which,  like  the 
Articles  of  Confederation,  excludes  incidental  or  implied 
powers,"  etc.  How  this  was  made  to  harmonize  with 
the  tenth  article  of  amendment  to  the  constitution,  was 
left  to  conjecture  alone,  for  there  is  no  comment  by  the 
court  relating  directly  thereto. 

It  will  be  observed  that  the  said  tenth  article  of  amend- 
ment provides  that,  the  powers  not  granted  by  the  consti- 
tution to  the  United  States,  nor  by  it,  prohibited  to  the 
states,  are  reserved  to  the  states  respectively,  or  to  the 
people. 

Nothing  can   be   granted  by  the  constitution   to    the 


90  CONSTITUTION   OF   THE   UNITED   STATES. 

United  States,  or  prohibited  to  the  state  by  it,  unless  it 
be  expressed  in  that  instrument ;  for  it  speaks  only  by 
the  language  and  expressions  made  use  of  in  it,  and  can 
speak  in  no  other  way  ;  hence,  unless  a  power  be  granted 
to  the  United  States,  or  prohibited  to  the  states,  by  ex- 
press language  of  the  constitution,  it  is  expressly  re- 
served to  the  respective  states,  or  to  the  people. 

Since  all  powers  not  expressly  granted  to  the  United 
States,  or  prohibited  to  the  states  by  the  language  of  the 
constitution,  are  reserv^ed  to  the  states  respectively,  or  to 
the  people,  no  incidental  or  implied  powers  can  be  ac- 
corded to  the  United  States,  without  first  taking  them 
away  from,  either  the  states  or  the  people.  And  as  (the 
supreme  court  concedes)  the  United  States  was  given 
jurisdiction  over  a  different  class  of  objects  of  govern- 
ment, than  the  class,  of  objects  over  which  the  jurisdic- 
tion of  the  states  were  made  to  extend,  the  power  of 
the  judiciary,  to  take  from  either  the  United  States,  to 
give  to  the  states,  or  to  take  from  the  states  to  give  to  the 
United  States,  any  power  not  expressed,  is  in  conflict  with 
the  letter  of  the  constitution,  and  the  exercise  of  such 
authority  by  the  judiciar>'  amounts  to  changing  the  pow- 
ers of  the  government  by  the  judiciary. 

The  court  says  in  this  Maryland  case :  "  In  America 
the  powers  of  sovereignty  are  divided  between  the  gov- 
ernment of  the  union  and  those  of  the  states.  They  are 
each  sovereign  with  respect  to  the  objects  committed  to 
it,  and  neither  is  sovereign  with  respect  to  the  objects 
committed  to  the  other. ' ' 

Sovereignty  is  above  the  law,  and  whenever  it  acts,  its 
actions  are  independent  of  legal  restraint ;  it  must,  how- 
ever, act  in  the  manner  provided  for  it  to  act,  else  what- 
ever it  may  do  would  not  be  regarded  as  sovereign  acts  ; 
and  if,  as  Mr.  Blackstone  says,  "  it  is  supreme,  irresist- 
ible, absolute,  uncontrollable  authority,"  it  can  neither 


CHARACTER    OF    THE    GOVERNMENT.  9 1 

be  divided  nor  limited.  It  is,  therefore,  difficult  to  un- 
derstand what  that  court  means  by  the  phrase  just  quoted, 
unless  the  court  intended  to  say  that  each  of  the  govern- 
ments named  was  authorized  to  wield  separate  sovereign 
forces,  merely  as  respective  agents  of  the  sovereign 
people.  But  as  powers  not  delegated  by  the  letter  of  the 
constitution  were  adjudged  to  the  United  States,  on  the 
sole  ground  that  they  were  incident  to  sovereignty,  and 
therefore  within  the  scope  of  its  powers,  it  is  more  than 
likely  that  the  court  was  guided  by  the  theory',  ante- 
dating the  American  system,  that  every  government, 
however  constituted,  or  by  whatever  authority  it  may 
subsist,  must  possess  sovereignty  somewhere  within 
itself,  and  wholly  ignored  the  bold  repudiation  of  that 
theory  by  our  colonial  ancestors,  who,  upon  separa- 
ting from  England,  received  the  sovereign  authority  as 
an  inherent  right  in  themselves,  and  in  changing  their 
colonies  into  state  governments,  based  on  constitutional 
limitations,  reserv^ed  that  authority  to  themselves. 

That  authority  being  in  themselves,  they  could,  by  the 
concurrence  of  the  people  of  the  respective  states,  author- 
ize the  union  to  wield  such  sovereign  forces  as  might  be 
necessary  or  proper  to  enable  it  to  execute  its  govern- 
mental duties  and  trusts  as  the  agent  of  the  people  of  the 
several  states,  and  still  retain  the  sovereignty  absolutely 
in  themselves,  to  the  extent  authority  is  given  to  the 
United  States  to  wield  sovereign  forces,  to  that  ex- 
tent the  authority  of  the  United  States  would  be  para- 
mount to  any  authority  of  any  state  ;  and  on  the  other 
side,  to  the  extent  authority  to  wield  sovereign  forces  are 
reserved  to  the  states  by  the  Constitution  of  the  United 
States,  to  that  extent  the  authority  of  the  state  would  be 
paramount,  and  ought  to  prevail  over  the  United  States. 

The  supreme  court  again,  in  the  case  of  Gibbon  vs. 
Ogden,  held  the  United  States  to  be  a  sovereign  nation. 


92  CONSTITUTION    OF    THE;   UNITED   STATES. 

and  in  arguing  the  question  uses  strong  expressions  ;  but 
the  strongest  argument  produced  by  the  court  consists  in 
the  change  from  what  the  court  calls  a  mere  league,  with  a 
college  of  ambassadors,  into  a  congress  with  authority  to 
make  laws,  vests  the  government  of  the  union  with  sov- 
ereign authority,  and  made  it  a  sovereign  nation. 

It  is  well  known  that  each  colony  existed  under  a  Brit- 
ish charter,  and  had  power  to  enact  laws  within  the  scope 
of  the  authority  contained  in  its  charter,  and  no  one  will 
contend  that  the  right  to  make  laws  in  conformity  with 
the  limitations  imposed  by  its  charter  had  the  effect  of 
vesting  the  colony  with  sovereignty.  The  cities  of  the 
United  States  generally,  if  not  universally,  have  a  legis- 
lative board  with  authority  to  enact  ordinances,  yet  no 
one  will  contend  that  the  authority  of  any  city  to  enact 
ordinances  under  the  limitations  of  its  charter  has  the 
effect  to  vest  it  with  the  sovereign  authority  of  the  state 
that  granted  the  charter. 

In  this  Gibbons  case  the  court  again  says,  there  is  no 
provision  in  the  constitution  requiring  a  strict  construc- 
tion of  the  grant  of  power  to  the  United  States  as  was 
the  case  in  the  Articles  of  Confederation. 

If  the  ninth  and  tenth  articles  of  amendment  to  the 
constitution,  heretofore  referred  to,  failed  to  perform  that 
function,  then  the  court  is  correct ;  but  how  the  court  can 
so  construe  those  provisions  is  not  easy  to  understand. 

But  Mr.  Pomeroy  in  his  commentaries  on  the  con- 
stitution, and  Mr.  John  C.  Hamilton,  in  his  edition  of 
the  Federalist,  contend  that  the  American  people  were 
always  a  united  people  ;  that  while  they  were  occupy- 
ing separate  colonies,  each  colony  deriving  its  charter 
from  the  same  sovereign  authority,  constituted  an 
agent  of  the  kingdom  of  Great  Britain,  so  that  by 
reason  of  being  common  agents  of  that  kingdom  they 
were  united  as  one  people,  who  inaugurated  the  revo- 


CHARACTER    OF   THE    GOVERNMENT.  93 

lutionary  war,  and  as  one  people  they  won  the  independ- 
ence of  the  American  states.  However  this  may  have 
been,  the  second  article  of  the  Articles  of  Confederation  is 
a  sufl&cient  answer. 

But  Mr.  Pomeroy  claims  that  the  people  ought  to  be 
considered  as  constituting  the  nation  or  state,  not  the  gov- 
ernment, and  that,  under  the  American  system,  the  peo- 
ple have  the  right  to  alter  or  abolish  the  government  and 
reconstruct  it  at  will.  But  he  supposes  the  sovereignty 
to  be  in  the  people  of  the  United  States  in  the  aggregate 
instead  of  being  in  the  people  of  the  respective  states  ; 
and,  therefore,  claims  that  the  people  of  the  United 
States  being  sovereign  maj^  change  the  government  at 
will,  even  to  the  extent  of  annihilating  the  states. 

If  the  sovereignty  is,  in  fact,  in  the  people  of  the 
United  States  in  the  aggregate,  they  are  certainly  above 
the  constitution,  and  according  to  the  provisions  of  the 
Declaration  of  Independence  they  would  have  the  right 
to  alter  or  abolish  the  whole  constitution  at  wnll,  and 
construct  a  government  on  such  principles  as  to  them 
may  appear  most  conducive  to  their  welfare  and  happi- 
ness, even  to  the  abolishment  of  the  states  absolutely. 

But  I  hope  to  show  that  the  sovereign  authority  of 
these  United  States  is  in  the  people  of  the  respective 
states,  as  separate  people,  under  the  Constitution  of  1787. 

On  the  side  of  those  who  advocate  that  the  United 
States  constitutes  a  federal  republic  :  some  contend  that 
the  sovereignty  is  in  the  political  organization  of  the  re- 
spective states  ;  this  theory'  logically  leads  to  the  right  of 
the  states  individually  to  secede  from  the  union  at  will. 

There  are  others  who  accept  the  theory  declared  in 
the  bill  of  rights  of  several  of  the  states,  to-wit,  that 
the  people  retain  all  rights  in  themselves,  and  the  officials 
are  but  the  agents,  trustees  and  servants  of  the  people, 
without  realizing  the  necessity  of  providing  a  distinct 


94  CONSTITUTION   OF   THE   UNITED   STATES. 

organ  tlirough  which  to  express  their  sovereign  will,  and 
another  to  express  their  will  as  subjects  of  the  govern- 
ment. This  theory  must  be  based  on  a  supposition  that 
the  people  constitute  the  state,  otherwise  the  officials 
could  not  be  their  direct  agents,  trustees  and  sen^ants. 
Among  those  who  advocate  this  theory  Judge  St.  George 
Tucker  is  one  of  the  clearest  commentators  that  I  have 
been  able  to  find.  In  his  edition  of  Blackstone's  Com- 
mentaries, he  gave  copious  notes  of  the  Constitution  of 
the  United  States,  in  the  form  of  appendix  to  the  fi!^st 
part  of  the  first  volume  of  said  edition. 

Judge  Tucker,  a  learned  jurist  and  great  logician, 
ably  presents  his  theory  of  the  government  of  the  union, 
showing  it  to  have  been  formed  by  compact,  and  to  be 
but  a  federal  republic. 

But  in  dealing  with  the  political  authority,  commonly 
denominated  the  sovereign  authority  by  writers  on  the 
subject,  he  fails  to  exhibit  his  usual  clearness  ;  but,  for 
fear  I  may  be  doing  him  injustice  in  saying  this,  and  that 
the  trouble  arises  out  of  my  want  of  ability  to  under- 
stand him,  rather  than  from  his  want  of  clearness,  I  give 
this  extract : 

"But,  for  reasons  which  will  hereafter  be  explained, 
I  prefer  calling  it  the  government,  or  administrative  au- 
thority of  the  state,  to  which  each  citizen  subjects  him- 
self, by  the  very  act  of  association,  for  the  purpose  of 
establishing  a  civil  society.     .     .     . 

' '  The  government,  or  administrative  authority  of  the 
state,  is  that  portion,  only  of  the  sovereignty,  which  is 
by  the  constitution  intrusted  to  the  public  functionaries : 
these  are  the  agents  and  servants  of  the  people. ' '  * 

The  learned  jurist  accepts  Mr.  Blackstone's  definition 
of  sovereignty,  and  concedes  it  to  be  the  supreme  au- 


*  Tucker's  Blackstone,  Note  B,  pages  7-9  (Appendix). 


CHARACTER    OF    THE    GOVERNMENT.  95 

thority  and  beyond  control ;  therefore  it  is  difficult  to 
reconcile  his  theory  of  vesting  the  public  officials  with  a 
part  of  that  authority,  even  as  agents  only,  for,  if  it  is 
supreme  and  beyond  control,  it  can  not  be  either  divided 
or  limited,  though  agents  may  be  authorized  to  exercise 
sovereign  forces  as  officers  of  the  sovereign  authority. 

And  it  is  equally  as  difficult  to  understand  how  the 
public  officials  can  be  vested  with  any  part  or  all  of  that 
authority,  independently  of  the  government,  of  which 
they  are  officers.  Their  title  to  the  offices  must  flow 
from  the  corporate  government,  and  can  be  maintained 
only  by  maintaining  that  entity,  and  they  can  be  punished 
for  malfeasance  or  misfeasance  in  office  only  through  that 
government,  and  whatever  powers  the}-  ma}'  have  must 
flow  to  them  through  that  entity  or  government. 

For  the  present  I  will  pretermit  the  discussion  of  theo- 
ries, and  draw  attention  to  the  organization  of  the  United 
States  under  the  Constitution  of  1787  ;  the  lodgment  of 
the  powers ;  the  mode  of  limiting  the  exercise  of  the 
granted  powers  ;  and  the  lodgment  of  the  sovereign  au- 
thority to  ascertain  the  character  of  the  government. 

The  preamble  to  the  constitution  declares  that  the 
constitution  was  ordained  and  established.  No  govern- 
ment was  established,  to  be  divided  into  departments,  as 
was  the  case  with  the  states.  But  each  department  was 
separately  ordained  and  established  by  the  constitution. 

The  legislative  department  was  instituted  by  the  first 
article  thereof,  and  its  powers  and  duties  minutely  de- 
fined ;  the  first  section  of  which  reads  as  follows : 

"All  legislative  powers  herein  granted  shall  be  vested 
in  a  congress  of  the  United  States,  which  shall  consist  of 
a  senate  and  house  of  representatives." 

The  second  article  institutes  the  executive  department, 


96  CONSTITUTION    OF    THE    UNITKD    STATES. 

and  vests  it  with  specific  and  well-defined  powers.     The 
first  section  thereof  is  as  follows : 

' '  The  executive  power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shall  hold  his 
office  during  the  term  of  four  years,  and,  together  with 
the  vice-president,  chosen  for  the  same  term,  be  elected 
as  follows." 

As  the  executive  has  jurisdiction  to  enforce  such  laws 
only  as  may  be  authorized  to  be  enacted,  the  meaning  of 
this  section  limits  the  executive  to  such  laws  only  as 
may  be  rightfully  passed  by  the  law-making  depart- 
ment. 

The  third  article  institutes  the  judiciary  department, 
and  vests  it  with  prescribed  and  well-defined  jurisdiction. 
The  first  section  of  this  article  reads  as  follows  : 

"The  judicial  power  of  the  United  States  shall  be 
vested  in  one  supreme  court,  and  in  such  inferior  courts 
as  the  congress  may  from  time  to  time  ordain  and  es- 
tablish."    .     .     . 

No  powers  were  granted  to  the  United  States  as  a 
whole.  On  the  contrary',  all  powers  granted  by  the  con- 
stitution are  vested  by  it,  in  one  or  the  other  of  these 
three  departments.  This  fact,  coupled  with  the  further 
fact,  that,  with  but  a  very  few  exceptions,  jurisdiction  of 
the  political  laws  only,  is  vested  in  either  of  these  three 
departments,  which  leaves  them  and  the  United  States, 
without  jurisdiction  of  the  civil  laws,  and  without  au- 
thority to  make  any  laws  for  the  government  of  any 
people,  without  which,  neither  the  United  States  nor 
these  three  departments  combined,  can  possibly  constitute 
a  complete  government.  The  United  States,  failing  to 
constitute  a  government,  and  having  no  powers,  they  can 
not  even  constitute  an  agent  to  conduct  the  afTairs  of 
the  union.  The  three  departments,  therefore,  must  be 
separate  agents,  and  the  only  agents  of  the  people  who 


CHARACTER    OF    THE    GOVERNMENT.  97 

ordained  them  to  manage  the  affairs  of  the  United  States, 
therefore  the  United  States  is  nothing  more  than  a  name 
to  indicate  the  states  united. 

Since  the  jurisdiction  of  said  departments  is  limited  to 
the  political  laws,  neither  one  of  them,  nor  all  of  them 
combined,  can  constitute  more  than  corporate  agents  of 
the  people  of  the  several  states  united  ;  and  since  neither 
one  of  them,  nor  all  of  them  combined,  can  possibl}'  con- 
stitute a  complete  government,  with  authority  to  make 
laws  for  the  people,  they  must  each  be  a  separate  agent 
of  the  sovereign  people  who  ordained  and  established 
them,  and  each  must  perform  the  function  and  duties 
committed  to  it  alone. 

Though  the  duties  and  functions  committed  to  each 
have  relation  to  the  duties  and  functions  committed  to 
the  other  departments,  and  the  aid  of  each  is  necessary  to 
enable  them  to  perform  their  respective  duties  ;  each, 
therefore,  necessarily  constitutes  a  part  of  the  others, 
though  separately  ordained  and  vested  with  separate 
powers,  and  is  prohibited  from  encroaching  on  the 
powers  of  the  others,  in  executing  its  own  duties.  The 
powers  and  duties  committed  to  these  departments  being 
necessary  to  the  conducting  of  the  affairs  of  the  union, 
and  each  department  being  required  to  act  in  harmony 
and  in  aid  of  the  others,  they  constitute  parts  of  a 
whole ;  and  that  whole  constitutes  a  municipal  agent 
or  corporation,  deriving  its  powers  from  the  sovereign 
people  who  ordained  them,  and  as  such  municipal  cor- 
poration, they  bear  the  same  relation  to  the  people  that 
a  city  does  to  the  state  that  incorporated  it,  or  to  that 
borne  by  the  colonies  to  the  sovereign  kingdom  of  Great 
Britain,  under  their  respective  charters. 

Furthermore,  by  article  five  of  the  constitution,  the 
sovereignty  of  the  United  States  is  recognized  to  be  in 


98  CONSTITUTION   OF   THE   UNITED   STATES. 

the  people  of  the  states  exclusively  and  absolutely,  by 
giving  to  the  states  authority  to  require  2.  federal  conven- 
tion to  be  called  to  propose  amendments  to  the  constitu- 
tion, whenever  the  legislatures  of  two-thirds  of  the  states 
shall  concur  in  demanding  its  call,  the  congress  is  obliged 
to  provide  for  it,  and  call  the  convention  so  demanded, 
and  has  no  option  to  refuse.* 

The  federal  convention  authorized  by  said  article  must 
have  equal  powers  to  that  of  1787,  and  it  may  propose 
any  amendments  or  changes  in  the  constitution  ;  and 
when  the  changes  or  amendments  proposed  by  that  con- 
vention shall  be  ratified  by  conventions  in  three- fourths 
of  the  states,  they  will  become  parts  of  the  constitution 
and  the  supreme  law  of  the  land  ;  but  until  ratified  by 
conventions  in  three-fourths  of  the  states  such  changes 
would  have  no  force,  but  amount  to  mere  proposals ; 
therefore,  it  is  the  ratification  by  conventions  of  the  states 
alone  that  can  give  them  any  validity,  particularly  such 
amendments  as  will  change  the  form  of  the  government 
or  enlarge  its  powers,  or  change  the  race  or  character  of 
those  who  are  to  compose  the  society  or  family  of  sover- 
eign people  of  the  nation. 

The  supreme  court  said  of  the  present  constitution : 
' '  It  was  the  ratification  by  conventions  in  the  states  that 
gave  it  validity,  which  might  be  doubted  if  it  had  been 
ratified  by  the  state  governments,  "f 

Judge  Story,  however,  in  his  Commentaries  on  the 
Constitution,  treats  the  two  modes  of  amending  the  con- 
stitution contained  in  article  five  of  equal  validity  as  to 
any  and  every  amendment  authorized  by  said  article, 
whether  by  proposals  made  by  the  congress,  to  be  rat- 

*  Letter  85,  Federalist  (Hamilton);  Story's  Com.  on  Con.,  Sec. 
1830. 

t  4  Wheaton,  316,  supra. 


CHARACTER   OF   THE   GOVERNMENT.  99 

ified  by  the  legislatures  of  the  states,  or  by  proposals  by 
the  federal  convention,  to  be  ratified  by  conventions  in 
the  states  ;  but  as  the  act  of  congress  would  amount  to 
proposals  only,  and  be  of  no  validity  until  ratified  by  the 
legislatures  of  the  states,  either  mode  of  amending  the 
constitution  will  answer  my  present  purpose.  I  will, 
therefore,  postpone  further  discussion  of  article  five  until 
it  is  reached  in  the  course  of  this  review. 

Since  the  federal  convention  authorized  by  article  five 
of  the  constitution  will  have  the  same  powers  and  au- 
thority the  Convention  of  1787  had,  it  may  propose  any 
amendment  or  change  in  the  constitution,  which,  when 
ratified  by  conventions  in  three-fourths  of  the  states,  or 
by  the  legislatures  of  three-fourths  of  the  states,  shall 
become  parts  of  the  constitution,  and  be  regarded  as  part 
of  the  supreme  law  of  the  land.  Hence,  so  far  as  it 
affects  the  power  of  the  states  to  change  the  organic  law, 
by  amending  the  constitution,  it  is  not  material  whether 
Judge  Story's  interpretation  of  article  five  be  accepted  or 
not.  For  if  the  legislatures  of  three-fourths  of  the  states 
could  compel  the  calling  of  the  federal  convention  to  pro- 
pose amendments,  and  when  whatever  amendments  or 
changes  that  convention  may  propose  to  the  constitution 
shall  be  ratified  by  conventions  in  three-fourths  of  the 
states,  the  same  shall  be  valid  as  part  of  the  consti- 
tution. 

Therefore,  the  states  may  change  the  constitution  at 
will  without  the  assent  of  the  United  States,  or  any  de- 
partment or  officer  thereof. 

No  government  can  possibly  be  sovereign  as  long  as  it 
is  dependent  on  the  will  of  any  other  nation  or  govern- 
ment for  its  existence. 

The  Articles  of  Confederation  declared  that  the  states 
retained  their  sovereignty  and  independence,  but  the  as- 
sent of  the  congress  was  necessary  to  make  any  change 


lOO  CONSTITUTION   OF  THE   UNITED   STATES. 

in  the  Constitution  of  1777  (better  known  as  the  Articles 
of  Confederation),  and  the  assent  of  every  state  was  also 
required  to  any  amendment  thereof. 

Therefore,  under  the  Articles  of  Confederation,  the 
sovereign  authority  to  change  the  organic  law  was  vested 
in  the  congress  and  the  states  together.  But  under  the 
Constitution  of  1787  (known  as  the  more  perfect  union), 
the  people  of  the  respective  states  alone  are  vested  with 
that  sovereign  authority.  The  time  may  come  when 
one-fourth  of  the  states  may  contain  a  majority  of  the 
popular  vote ;  indeed,  at  this  time,  twelve  of  the  larger 
states  in  the  union  choose  a  majority  of  the  presidental 
electors,  and  there  being  forty-four  states  in  the  union, 
it  would  require  eleven  states  to  constitute  one-fourth, 
but  no  eleven  states  contain  a  majority  of  the  popular 
vote  of  the  United  States. 

Furthermore,  the  United  States  never  had  any  citizens 
except  those  of  the  several  states;  nor  can  the  United 
States  have  citizens,  independently  of  those  of  the  states, 
without  distroying  its  ability  to  protect  all  citizens  of  the 
United  States  alike.  All  who  are  citizens  of  any  state  con- 
stitute citizens  of  the  United  States,  and  the  only  citizens 
thereof,  as  will  be  shown  a  little  further  on  in  this 
chapter. 

It  is  conceded  by  the  supreme  court,  and  nationalists 
generally,  that  the  political  organizations  of  the  states 
(or,  as  the  supreme  court  chooses  to  term  them,  the  state 
sovereignties)  are  represented  by  the  senate  of  the  United 
States.  But  they  claim  that  the  American  people  are 
represented  by  the  house  of  representatives  in  the  United 
states  congress  ;  which,  according  to  my  understanding, 
is  a  mistake.  On  the  contrary,  the  members  in  the 
house  of  representatives  represent  the  people  of  their  re- 
spective states  only. 

The  Constitution  of  the  United  States  provides  that. 


CHARACTER   OF   THE   GOVERNMENT.  lOI 

representation  and  direct  taxes  shall  be  apportioned 
among  the  several  states,  which  may  be  inci^ided  within 
this  union,  according  to  their  respective  numbers,  which 
shall  be  determined  by  adding  to  -th^^  n^hol'S'  nuihl^ef  of 
free  persons,  including  those  bound  to  service  for  a  term 
of  years,  and  excluding  Indians  not  taxed,  three-fifths  of 
all  other  persons.  * 

This  representation  shall  be  apportioned  among  the 
states  (noi  among  the  people),  according  to  the  number 
of  persons  of  the  class  named,  each  state  may  have. 

The  number  of  representatives  given  to  Connecticut,  and 
each  of  the  two  Carolinas  was  five  members  to  each  state. 
Inasmuch  as  it  was  provided  that  the  number  of  repre- 
sentatives should  not  exceed  one  for  every  thirty  thous- 
and (except  in  case  any  state  should  contain  less  than 
that  number  of  inhabitants,  in  which  latter  event,  the 
state  below  the  requisite  number  should  have  one  repre- 
sentative) it  must  have  been  thought  that  the  Carolinas 
and  Connecticut,  each,  contained  one  hundred  and  fifty 
thousand  persons  of  the  class  named. 

Now,  suppose  that  each  of  these  states  contained  one 
hundred  and  seventy  thousand  persons  of  the  class  named, 
they  would  each  still  have  been  entitled  to  but  five  repre- 
sentatives, making  but  fifteen  representatives  from  these 
three  states,  whereas,  the  same  population,  in  any 
one  state,  would  entitle  it  to  seventeen  representatives. 
As  it  is  more  convenient  to  count  by  voters,  than  popu- 
lation, let  us  reduce  the  population  to  voters  by  dividing 
by  five  as  a  fair  estimate  ;  the  two  Carolinas  and  Connec- 
ticut would  each  have  five  districts,  containing  six  thou- 
sand and  eight  hundred  voters.  Let  us  suppose  further 
that   the   political    sentiment    should   be  nearly  equally 

*Sec.  2,  Art.  i,  Con. 


I02  CONSTITUTION   OF   THE   UNITED   STATES. 

divided  in  each  of  the  Carolinas,  and  in  Connecticut  it 
srGU>d  be  ".pTfetty ;  mifch  one  way.  In  each  of  the  Caro- 
liijas  the  district  should  give  to  one  party  an  average  of 
Si:^-" 'htindFed  majfjri.ty.,'' which  would  give  to  one  party 
three  thousand  and  seven  hundred  votes,  and  to  the  other 
party  three  thousand  and  one  hundred  votes. 

There  being  in  the  two  Carolinas  ten  districts,  those 
two  states  would  give  to  the  prevailing  party  thirty-seven 
thousand  votes,  and  to  the  unsuccessful  party  thirty-one 
thousand  votes.  And  in  Connecticut  the  party  that  lost 
the  two  Carolinas,  should  get  an  average  of  five  thousand 
votes,  and  the  winning  party  in  the  Carolinas  should  get 
only  eighteen  hundred  votes  in  each  of  the  Connecticut 
districts,  making  twenty-five  thousand  to  be  added  to  the 
thirty-one  thousand  votes  given  in  the  ten  districts  in  the 
two  Carolinas,  making  fifty-six  thousand  votes  in  all, 
yet  that  party  would  get  but  five  representatives  in 
congress ;  while  the  other  party,  getting  only  thirty- 
seven  thousand  votes  in  the  ten  districts  of  the  two 
Carolinas,  and  five  thousand  votes  in  the  five  Connecticut 
districts,  making  in  all  forty  thousand  votes,  would  elect 
ten  out  of  fifteen  representatives,  while  the  fifty-six 
thousand  votes  would  elect  only  five,  out  of  fifteen  rep- 
resentatives. This  of  itself  ought  to  be  sufl5cient  to  show 
that  the  provision  was  intended  to  secure  representation 
for  the  people  of  the  states. 

But  it  is  further  provided,  "that  the  house  of  repre- 
sentatives shall  be  composed  of  members  chosen  every 
second  year  by  the  people  of  the  several  states,  and  the 
electors  in  each  state  shall  have  the  qualifications  requi- 
site for  electors  of  the  most  numerous  branches  of  the 
state  legislatures."* 

*  Sec.  2,  Art.  i.  Con. 


CHARACTER    OF    THE    GOVERNMENT.  103 

It  will  be  observed  that  the  representation  in  congress 
must  be  chosen  by  the  people  of  the  several  states,  and 
by  no  other  people. 

It  is  also  provided  that,  "  when  vacancies  happen  in 
the  representation  from  any  state,  the  executive  author- 
ity thereof  shall  issue  writs  of  election  to  fill  such  va- 
cancies. ' ' 

If  that  branch  of  congress  was  intended  to  represent 
the  people  of  the  United  States,  why  not  have  provided 
for  the  president  to  issue  vnits  of  election  to  fill  such 
vacancies  ? 

The  president  and  \dce-president  of  the  United  States 
are  chosen  by  the  states,  that  is,  the  electors  are  elected 
by  the  people  of  the  several  states ;  however,  each  state 
lias  as  many  electors  as  its  quota  of  congressmen  and 
senators  together,  and  each  elector  votes  individually, 
and  is  counted  individually  in  the  election,  although  the 
electors  may  be  voted  for  by  the  state  at  large. 

But  should  the  election  of  president  devolve  on  the 
house  of  representatives,  the  vote  is  to  be  taken  by 
states,  the  smaller  states  amounting  to  as  much  as  the 
larger  states. 

The  judges  of  the  supreme  court,  and  of  other  courts, 
are  named  by  the  president  and  confirmed  by  the  senate. 

Therefore  in  no  event  can  the  people  as  a  people  of 
the  United  States  have  any  thing  to  do  with  the  filling 
of  any  office  in  the  United  States,  and  are  in  nowise 
recognized  by  the  constitution  as  people  of  the  United 
States. 

It  is  true,  the  language  of  the  constitution  frequently 
refers  to  the  people  of  the  United  States,  but  the  people 
so  referred  to  were  evidently  the  people  of  the  several 
states ;  for  it  is  conceded  by  all  that  the  United  States, 
under  the  Articles  of  Confederation,  was  simply  a  league 
of  states,  and,  as  such,  could  have  no  citizens ;  yet,  in 


I04  CONSTITUTION   OF   THE  UNITED   STATES. 

fixing  the  qualifications  of  president,  he  is  required  to 
have  been  a  native  bom  citizen  of  the  United  States,  or 
a  citizen  thereof  at  the  time  of  the  adoption  of  the  con- 
stitution ;  and  senators  are  required  to  have  been  nine 
years  a  citizen  thereof ;  and  members  of  the  house  of 
representatives  are  required  to  have  been  citizens  thereof 
for  seven  years. 

As  a  league  of  states,  the  United  States  could  not  be 
a  government  of  a  people,  or  a  nation  of  people,  for,  its 
constituent  parts  being  states  only,  they  could  have  no 
people ;  therefore  the  United  States  was  incapable  of 
having  citizens,  or  maintaining  a  people ;  and  this  ina- 
bility to  maintain  a  people  must  have  continued  until  the 
new  constitution  could  be  ratified,  even  if  that  instru- 
ment had  the  effect  of  changing  the  relation  of  the  United 
States  to  the  states.  The  framers  of  the  constitution, 
therefore,  must  have  intended  to  indicate  the  citizens  of 
the  several  states,  who,  it  is  true,  were  in  a  qualified 
sense  citizens  of  the  confederation,  but  the  obligation  of 
the  confederation  to  them  flowed  through  the  state  they 
inhabited,  and  their  obligation  to  the  United  States 
flowed  through  their  respective  state,  and  depended  on 
the  compact  of  confederation. 

As  the  United  States  was  at  that  time  incapable  of 
having  full  citizens,  the  convention  not  only  prescribed 
impossible  qualifications  for  president,  senators  and  rep- 
resentatives, but  made  it  utterly  impossible  to  ever  put 
the  constitution  in  operation,  unless  the  citizenship  indi- 
cated was  intended  to  apply  to  the  qualified  citizenship, 
arising  out  of  being  full  citizens  of  some  one  of  the  states 
within  the  confederation. 

Since,  no  government  was  ordained  for  the  United 
States  as  a  whole ;  but,  to  the  contrary,  three  separate 
and  distinct  departments  (to  wit),  a  legislative,  execu- 
tive, and   judiciary,  with   exclusive   jurisdiction  of   the 


CHARACTER    OF    THE    GOVERNMENT.  IO5 

powers,  respectively,  granted  to  each  of  them,  were  or- 
dained and  established.  And  as  every  power  granted  to 
either  of  said  departments,  or  all  of  them  combined,  re- 
lated to  authority  to  said  departments  to  maintain  them- 
selves and  the  autonomy  of  the  states  in  the  union,  as 
establisked  by  the  constitution.  And  all  police  powers, 
and  authority  to  make  laws  for  the  regulation  of  society, 
and  the  protection  of  the  civil  and  religious  rights  of  the 
people,  were  reserved  to  the  exclusive  jurisdiction  of  the 
states. 

And,  as  the  people  of  the  states  were  authorized  to  elect 
legislatures  to  demand  the  call  of  a  convention  to  pro- 
pose amendments  or  alterations  in  the  constitution, 
which  when  ratified  by  conventions  in  three-fourths  of 
the  states  shall  become  part  of  the  organic  law. 

And,  as  the  United  States  has  no  citizens  except  by 
virtue  of  their  being  citizens  of  a  state  in  the  union 
to  make  laws  for,  it  is  utterly  impossible  for  the  United 
States  to  have  a  sovereign  government  ;  or  a  complete 
government  of  any  sort.  As  the  United  States  has  juris- 
diction of  the  political  division  of  the  object  of  govern- 
ment only,  and  the  states  exclusive  jurisdiction  of  the  civil 
division  of  the  object  of  government,  it  requires  both 
to  constitute  one  complete  government  ;  they  are  each  as 
necessary  to  the  other,  to  constitute  a  complete  govern- 
ment, as  the  legislative,  executive  and  judiciary-  depart- 
ments of  the  governmental  agency  of  the  union  ;  or  of 
any  of  the  states  are,  to  constitute  a  whole. 

But  w'hile  no  powers  were  granted  to  the  United  States, 
in  that  name,  and  every  power,  authorized  to  be  used  in 
behalf  of  the  union,  was  granted  to  the  exclusive  juris- 
diction of  the  legislative,  executive,  or  judiciary-  depart- 
ments, respectively,  the  powers  granted  to  each,  relate  to 
the  powers  granted  to  each  of  the  other  departments  ; 
for  no  law  that  might  be  enacted  by  the  legislative  could 


Io6  CONSTITUTION   OF   THE   UNITED   STATBS. 

possibly  be  of  any  force,  unless  it  could  be  executed, 
hence  these  three  departments  were  thus,  in  a  measure, 
united,  and  as  a  whole  may  constitute  a  municipal  cor- 
poration, or  governmental  agent  of  the  several  states 
united. 

Therefore  it  may  be  safely  claimed,  that  the  great 
American  discovery  in  the  science  of  government,  by 
which  the  people  can  retain,  in  themselves,  the  whole 
sovereign  authority,  and  also  be  members  of  the  corpo- 
ration, or  subjects  of  the  municipal  agent  instituted  by 
themselves,  by  ordaining  a  different  organ  to  express 
their  sovereign  will  through  (as  explained  in  the  first 
chapter  hereof),  is  retained  as  a  principle  of  government 
under  the  Constitution  of  1787.  And  that  the  American 
discovery,  of  dividing  the  two  grand  objects  of  govern- 
ment, and  giving  one  of  them  to  one  jurisdiction,  and 
the  other  to  another  and  separate  jurisdiction,  was  also 
retained  in  the  more  perfect  union. 

Hence,  the  governmental  structure  of  the  United 
States,  constitutes  a  municipal  agent  or  corporation — 
enacted  by  the  people  of  the  states  united. 

But  although  the  structure  for  the  management  of  the 
affairs  of  the  union  is  merely  a  municipal  corporation,  or 
agent  of  the  states  united,  as  such  it  is  a  trustee  of  the 
powers  and  duties  reposed  in  ordaining  the  constitution, 
and  is  in  duty  bound  to  execute  the  same.  Among  the 
duties  and  trusts  reposed  we  find  that  of  protecting  the 
states  in  the  equal  enjoyment  of  their  rights  and  privi- 
leges, as  against  each  other  and  as  against  foreign  inter- 
ference, and  to  guarantee  to  each  state  a  republican  form 
of  government. 

These  duties  can  not  be  properly  performed  without 
authority  to  maintain  the  union,  and  to  compel  each  state 
to  contribute  to  the  public  defense. 

Hence,  not  only  has  the  municipal  corporation  of  the 


CHARACTER   OF   THE    GOVERNMENT.  107 

union  no  authority  to  assent  to  the  withdrawal  of  any- 
state  from  the  union,  but  is  compelled  by  the  character 
of  the  trust  to  prevent  any  one  of  the  states  from  with- 
drawing from  the  union  otherwise  than  by  the  conven- 
tions provided  for  by  the  constitution. 

This  does  not,  however,  exclude  every  other  mode  of 
escaping  from  discriminations  by  a  state,  or  tyranny  by 
the  public  officials  ;  for,  as  clearly  set  forth  in  the  Declara- 
tion of  Independence,  no  people  can  bind  themselves  to 
a  bondage  of  tyranny  or  slavery  by  even  the  most  solemn 
compact,  for  their  freedom  is  a  gift  of  nature,  and  they 
have  no  right  to  part  with  it,  and  may  forcibly  recover  it 
whenever  lost  from  them. 

However,  there  is  no  mode  prescribed  in  the  consti- 
tution for  exercising  this  right ;  hence,  whenever  it  is  at- 
tempted to  be  exercised  by  force,  the  attempt  will  amount 
to  rebellion  against  the  constitution,  whether  the  attempt 
be  made  by  authority  of  the  state  or  otherwise,  and  it 
will  therefore  be  the  duty  of  the  federal  corporation  or 
government  to  suppress  it,  and  to  use  such  force  as  may 
be  necessary'  to  put  down  the  rebellion,  and  no  more. 

Although  such  attempts  be  rebellion,  as  long  as  any 
regard  is  entertained  for  the  great  Declaration  of  Inde- 
pendence, those  who  engage  in  rebellion  against  discrim- 
inations and  tyranny  imposed  on  themselves  or  their  state 
will  be  respected  for  their  manhood  and  love  of  freedom 
and  devotion  to  the  great  principles  of  the  Declaration  of 
Independence  and  of  the  Constitution. 

These  views  are  not  in  harmony  with  the  right  of  a 
state  to  secede,  as  contended  for  by  so  many  able  states- 
men on  the  southern  side  of  the  late  civil  war.  How- 
ever, many  who  were  with  me  in  that  war,  neither  claimed 
the  right  of  the  states,  individually,  to  secede,  nor  de- 
nied the  right  of  the  United  States  to  coerce  the  seceding 
states  back  into  the  union. 


I08  CONSTITUTION    OF    THE   UNITED    STATES. 

But  while  we  laid  no  claim  to  the  right  of  a  state  to  se- 
cede, we  claimed  the  right  to  forcibly  resist  the  revolution 
gradually  and  silently  going  on,  by  repeated  usurpations 
of  ungranted  powers,  which  we  believed  would  sooner  or 
later  undermine  the  whole  fabric  of  our  American  sys- 
tem of  free  governments,  and  reduce  the  people  to  a  hu- 
miliating bondage  to  an  arrogant  national  aristocracy. 
And  as  that  resistance  had  to  be  maintained  by  force  of 
arms,  it  was  better  to  conduct  it  through  state  authority, 
as  the  states  could  suppress  lawlessness  and  mobs, 
and  conduct  the  war  with  order  and  on  civilized  princi- 
ples, and  to  a  great  extent  prevent  the  useless  destruction 
of  property,  and  avoid  many  of  the  hardships  and  ravages 
of  an  internecine  war. 

Still,  holding  the  American  system  of  government  in 
high  esteem,  and  entertaining  a  reverence  for  our  revolu- 
tionary sires  who  gave  us  that  system,  and  believing  that 
under  that  system  the  people  could  maintain  their  free- 
dom, and  recognizing  the  duty  of  every  generation  to 
hand  down  to  its  succeeding  generation  a  good  and  free 
government,  bouyed  many  a  soldier  on  the  southern 
side  of  the  late  civil  war  to  cheerfully  submit  to  the 
hardships  of  camp  life  and  the  dangers  of  the  battle 
field. 

Technically  speaking,  the  confederates  were  engaged 
in  rebellion  ;  but  it  was  rebelling  against  the  forms  of 
the  government,  to  save  the  great  principles  thereof,  and 
the  freedom  and  sovereign  authority  of  the  people,  and 
the  principles  of  liberty  set  forth  in  the  Declaration  of 
Independence  and  the  bill  of  rights  of  the  respective 
states,  which  are  too  deeply  rooted  in  the  hearts  of  the 
American  people  for  them  to  permit  the  term  rebellion  to 
become  odious. 


ORGANIZATION    OF    LEGISLATIVE    DEPARTMENT.     lOg 

CHAPTER  lY. 

ORGANIZATION   OF  THE   LEGISLATIVE   DEPARTMENT. 


Article  I. 
Scdioyi  I. 

"All  legislative  powers  herein  granted  shall  be  vested 
in  a  congress  of  the  United  States,  which  shall  consist  of 
a  senate  and  house  of  representatives. ' ' 

"All  legislative  power  herein  granted,"  shows  clearly 
that  there  are  legislative  powers  that  are  not  granted  to 
the  United  States. 

But  whatever  legislative  powers  were  granted  to  the 
United  States,  were  vested  in  the  congress,  consisting  of 
a  senate  and  house  of  representatives.  This  must,  how- 
ever, be  taken  with  some  qualification,  for,  by  the  seventh 
section  of  this  article,  all  bills  are  required  to  be  approved 
by  the  president  before  they  can  become  laws  ;  or,  if  the 
president  disapproves  any  bill,  he  is  required  to  so  state 
in  wTiting  and  return  it  to  the  house  from  which  it  origi- 
nated. Though  each  house,  by  a  two-thirds  vote,  can 
re-pass  the  bill  over  his  veto — thereupon  it  will  become 
a  law,  notwithstanding  the  president's  veto. 

The  president  may,  therefore,  check  the  congress  in 
the  exercise  of  its  powers  in  making  laws,  and  in  his  veto 
message  he  may  suggest  such  changes  in  the  bill  as  would 
make  it  acceptable  to  him,  consequently,  he  is  to  some 
extent  a  factor  in  the  making  of  laws  in  the  United 
States. 

In  England,  the  chief  executive  constitutes  a  part  of 
the  parliament ;  indeed,  the  king  (who  is  the  chief  execu- 


no  CONSTITUTION   OF   THE   UNITKD   STATES. 

tive  of  the  realm)  sits  with  the  house  of  lords,  either  in 
person  or  by  representation.  But  this  has  been  more  fully 
explained  in  the  first  chapter,  and  will  be  further  treated 
of  in  considering  the  sessions  of  congress,  to  which  a 
comparison  more  appropriately  belongs. 

Sect  1071  2. 

Paragraph  i .  "  The  house  of  representatives  shall  be 
composed  of  members  chosen  every  second  year  by  the 
people  of  the  several  states,  and  the  electors  in  each  state 
shall  have  the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  state  legislature." 

Par.  2.  "  No  person  shall  be  a  representative  who  shall 
not  have  attained  the  age  of  twenty- five  years,  and  been 
seven  years  a  citizen  of  the  United  vStates,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  state  in  which 
he  shall  be  chosen." 

Par.  3.  "  Representatives  and  direct  taxes  shall  be  ap- 
portioned among  the  several  states,  which  may  be  in- 
cluded within  this  union,  according  to  their  respective 
numbers,  which  shall  be  determined  by  adding  to  the 
whole  number  of  free  persons,  including  those  bound  to 
service  for  a  term  of  years,  and  excluding  Indians  not 
taxed,  three-fifths  of  all  other  persons.  The  actual 
enumeration  shall  be  made  within  three  years  after  the 
first  meeting  of  the  congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such  man- 
ner as  they  shall  by  law  direct.  The  number  of  repre- 
sentatives shall  not  exceed  one  for  every  thirty  thousand, 
but  each  state  shall  have  at  least  one  representative  ; 
and,  until  such  enumeration  shall  be  made  the  state  of 
New  Hampshire  shall  be  entitled  to  choose  three  ;  Massa- 
chusetts, eight ;  Rhode  Island  and  Providence  Planta- 
tions, one ;  Connecticut,  five ;  New  York,  six ;  New 
Jersey,    four ;    Pennsylvania,    eight ;     Delaware,    one ; 


ORGANIZATION    OF    LEGISLATIVE    DEPARTMENT.     1 1  I 

Maryland,  six  ;  Virginia,  ten  ;  North  Carolina,  five  ; 
South  Carolina,  five,  and  Georgia,  three." 

Par.  4.  "Where  vacancies  happen  in  the  representa- 
tion from  any  state,  the  executive  authority  thereof 
shall  issue  writs  of  election  to  fill  such  vacancies. ' ' 

Par.  5.  "The  house  of  representatives  shall  choose 
their  speaker  and  other  officers  ;  and  shall  have  the  sole 
power  of  impeachment." 

The  organization  of  the  house  of  representatives  was 
considered  at  length  in  the  third  chapter,  to  show  that 
this  house  represents  the  people  of  the  respective  states, 
instead  of  a  people  of  the  United  States  in  the  aggregate  ; 
therefore,  instead  of  repeating,  reference  is  here  made  to 
the  consideration  of  the  house  of  representatives  in  that 
chapter. 

By  the  fifth  paragraph  of  this  section,  it  is  provided 
that  the  house  of  representatives  shall  have  the  sole 
power  of  impeachment. 

This  provision  does  not  mean  that  the  house  of  repre- 
sentatives shall  be  triers  of  impeachment,  but  that  it 
shall  determine  whether  impeachment  proceedings  shall 
be  prosecuted  in  all  cases,  for  it  is  provided  that  the  sen- 
ate shall  try  all  cases  of  impeachment ;  but  when  the 
president  is  under  trial,  the  chief -justice  of  the  supreme 
court  shall  preside,  as  will  be  seen  further  along. 

The  house  of  representatives  therefore  acts  as  a  barrier 
against  all  prosecutions  by  impeachment,  and  perform.s 
the  functions  of  conservatism,  in  prosecutions  for  im- 
peachment similar  to  those  that  grand  juries  do,  in  prose- 
cutions for  felonies  or  penal  proceedings.  But  unlike 
grand  juries,  which  take  no  part  in  a  prosecution,  the 
house  of  representatives,  after  finding  the  bill  of  indict- 
ment, choose  a  certain  number  of  their  members  to  con- 
duct the  prosecution  in  all  impeachment  cases  before  the 
senate,  as  a  court. 


112  CONSTITUTION   OF   THE   UNITED   STATES. 

The  senate  is  required  to  be  under  oath  or  affirmation 
when  sitting  as  a  court  to  try  an  impeachment,  and  sits 
alone  in  all  cases  except  where  the  president  is  under 
trial. 

That  the  house  of  representatives  should  be  vested 
with  power  to  choose  its  speaker  and  other  officers,  is 
evidently  necessar>^  to  enable  this  house  to  efficiently 
transact  its  business  ;  it  therefore  needs  no  other  comment. 

Section  J. 
Par.  I .   "  The  senate  of  the  United  States  shall  be  com- 
posed of  two  senators  from  each  state,  chosen  by  the 
legislature  thereof,  for  six  years  ;  and  each  senator  shall 
have  one  vote. ' ' 

Par.  2.  "Immediately  after  they  shall  be  assembled 
in  consequence  of  the  first  election,  they  shall  be  divided 
as  equally  as  may  be,  into  three  classes.  The  seats  of 
the  senators  of  the  first  class  shall  be  vacated  at  the  ex- 
piration of  the  second  year,  of  the  second  class  at  the 
expiration  of  the  fourth  year,  and  of  the  third  class  at 
the  expiration  of  the  sixth  year,  so  that  one  third  may 
be  chosen  every  second  year  ;  and  if  vacancies  happen  by 
resignation,  or  otherwise,  during  the  recess  of  the 
legislature  of  any  state,  the  executive  thereof  may  make 
temporary  appointments,  until  the  next  meeting  of  the 
legislature,  which  shall  then  fill  such  vacancies." 

Par.  3.  "No  person  shall  be  a  senator  who  shall  not 
have  attained  to  the  age  of  thirty  years,  and  been  nine 
years  a  citizen  of  the  United  States,  and  who  shall  not, 
when  elected,  be  an  inhabitant  of  that  state  for  which  he 
shall  be  chosen. ' ' 

Par.  4.  "The  vice-president  of  the  United  States  shall 
be  president  of  the  senate,  but  shall  have  no  vote  unless 
they  be  equally  divided. 

Par.  5.   "The  senate  shall  choose  their  other  officers, 


ORGANIZATION   OF    LEGISLATIVE    DEPARTMENT.     II 3 

and  also  a  president  pro-tempo7'e,  in  the  absence  of  the 
vice-president,  or  when  he  shall  exercise  the  office  of 
president  of  the  United  States. ' ' 

Par.  6.  "The  senate  shall  have  the  sole  power  to  try- 
all  impeachments  ;  when  sitting  for  that  purpose,  they 
shall  be  on  oath  or  affirmation.  When  the  president  of 
the  United  States  is  tried,  the  chief-justice  shall  preside  ; 
and  no  person  shall  be  convicted  without  the  concurrence 
of  two-thirds  of  the  members  present." 

Par.  7.  "Judgment  in  case  of  impeachment  shall  not 
extend  further  than  removal  from  office,  and  disqualifica- 
tion to  hold  and  enjoy  any  office  of  trust,  honor  or  profit 
under  the  United  States  ;  but  the  party  con\4cted  shall  nev- 
ertheless be  liable  and  subject  to  indictment,  trial,  judg- 
ment and  punishment,  according  to  law." 

It  was  shown  in  a  former  chapter  that  the  members  of 
the  house  of  representatives  represent  the  people  of  the 
states. 

And  it  will  be  seen  by  the  provisions  of  this  section 
that  the  senators  represent  the  political  corporation  of  the 
state  that  elects  them,  therefore,  as  the  members  of  the 
house  of  representatives  represent  the  people  of  the  states, 
and  the  senators  represent  the  political  corporations  of 
the  respective  states,  the  United  States  is  truly  a  union  of 
the  people  of  the  respective  states,  and  also  a  union  of  the 
political  corporations  of  the  several  states.  Since  all 
agreed  to  retain  the  states,  for  the  management  of 
the  home  affairs  thereof,  it  was  necessary  for  the  union 
to  consist  of  a  union  of  the  political  corporations  of 
the  states,  as  well  as  a  union  of  the  people  of  the  sev- 
eral states,  for  the  reason  that  the  states  could  not 
be  retained  as  states  without  the  people  thereof  owing  alle- 
giance to  their  respective  state  corporations,  which  would 
clash  with  the  allegiance  due  the  governmental  corpora- 
tion of  the  union,  hence  there  must  also  be  a  compact  and 


114  CONSTITUTION   OF   THE  UNITED   STATES. 

agreement  between  the  corporations  of  the  respective 
states.  Indeed,  the  only  way  to  accompHsh  that  har- 
mony between  the  states  and  the  union,  and  relieve  the 
people  of  the  embarrassing  attitude  of  owing  allegiance 
to  two  different  corporations  or  municipalities  was  to  re- 
tain the  corporations  of  the  states,  as  well  as  the  people 
thereof,  in  the  compact  of  the  union. 

It  is  true,  the  people  of  the  states  entered  into  the 
union  as  sovereigns,  not  as  subjects  of  the  political  cor- 
porations of  the  states,  and  their  action  in  that  regard 
was  above  the  state  corporation  ;  but  it  is  a  physical  im- 
possibility to  make  any  one  equally  subject  to  two  differ- 
ent governments  at  the  same  time  and  in  the  same  way. 
The  confederation  was  a  union  of  the  political  corpora- 
tions of  the  states  only.  But  the  more  perfect  union 
consists  of  a  union  of  the  sovereign  people  of  the  re- 
spective states,  as  well  as  the  union  that  had  been  formed 
under  the  Articles  of  Confederation.  The  sanction  of 
the  political  corporations  of  the  states  to  the  more  perfect 
union  is  shown  by  sending  delegates  to  the  convention 
that  framed  the  constitution,  and  by  afterward  calling 
conventions  of  the  people  of  the  respective  states  to  adopt 
the  constitution. 

There  are  leading  politicians  who  advocate  the  elec- 
tion of  the  senators  by  popular  election,  instead  of  by 
the  legislatures  of  the  states  ;  therefore,  I  give  this  sub- 
ject more  attention  than  seems  to  be  necessary. 

The  advocates  of  electing  the  senators  by  the  people 
admit  that  it  will  require  an  amendment  to  the  constitu- 
tion, but  they  say,  "Amend  the  constitution  so  as  to  au- 
thorize it  to  be  done." 

There  were  delegates  in  the  constitutional  convention 
that  framed  it  who  thought  the  people  alone  should  be 
represented  in  the  congress.  Among  them  were  the 
Hon.  A.  Hamilton,  James  Madison,  and  many  others. 


ORGANIZATION   OF   LEGISLATIVE   DEPARTMENT.    II 5 

who  favored  a  strong  central  government ;  but  I  name 
Messrs.  Hamilton  and  Madison  because  they  each  wrote 
letters  approving  of  the  plan  of  choosing  the  senators, 
and  had  them  published,  while  the  constitution  was  be- 
fore the  states  for  ratification. 

Mr.  Hamilton  said  on  the  subject : 

".  .  .  So  far  as  that  mode  of  formation  may  ex- 
pose the  union  to  the  possibility  of  injury  from  the  state 
legislatures,  it  is  an  evil ;  but  it  is  an  evil  which  could 
not  have  been  avoided  without  excluding  the  states,  in 
their  political  capacity,  wholly  from  a  place  in  the  organ- 
ization of  the  national  government.  If  this  had  been 
done,  it  would  doubtless  have  been  interpreted  into  an 
entire  dereliction  of  the  federal  principles ;  and  would 
certainly  have  deprived  the  state  government  of  that  ab- 
solute safeguard  which  they  will  enjoy  under  this  pro- 
vision.    .     .     . "  * 

Mr.  Madison  said  : 

".  .  ,  It  is  equally  unnecessary  to  dilate  on  the  ap- 
pointment of  senators  by  the  state  legislatures.  Among 
the  various  modes  which  might  have  been  devised  for 
constituting  this  branch  of  the  government,  that  which 
has  been  proposed  by  the  convention,  is  probably  the 
most  congenial  with  the  public  opinion.  It  is  recom- 
mended by  the  double  advantage  of  favoring  a  select 
appointment,  and  of  giving  to  the  state  governments 
such  an  agency  in  the  formation  of  the  federal  gov- 
ernment as  must  secure  the  authority  of  the  former, 
and  may  form  a  convenient  link  between  the  tv\'o  sj'S- 
tems.     .     .     . "  t 

He  further  says  in  the  same  letter : 

".  .  ,  In  this  spirit  it  may  be  remarked  that  the 
equal  vote  allowed  to  each  state  is  at  once  a  constitu- 

*  Letter  59,  Federalist.  t  Letter  62,  Federalist. 


Il6  CONSTITUTION   OF  THE  UNITED   STATES. 

tional  recognition  of  the  portion  of  sovereignty  remain- 
ing in  the  individual  states,  and  an  instrument  for  pre- 
serving that  residuary  sovereignty.  So  far  the  equality 
ought  to  be  no  less  acceptable  to  the  large  than  to  the 
small  states,  since  they  are  not  less  solicitous  to  guard, 
by  every  possible  expedient,  against  an  improper  consoli- 
dation of  the  states  into  one  simple  republic. ' ' 

Both  of  these  gentlemen,  while  in  the  convention  that 
framed  the  constitution,  opposed  any  representation  of 
the  political  organizations  of  the  states  in  the  federal,  or, 
as  they  called  it,  the  "national  government,"  and  urged 
a  representation  of  the  people  only,  which  would  indeed 
have  consolidated  the  United  States  into  one  single 
republic,  and  have  left  the  states  no  more  rights  in  the 
government  than  counties  have  in  the  government  of 
their  states ;  they  had  a  strong  following  in  the  con- 
vention, and  succeeded  in  getting  enough  support  to 
carry  this  plan  in  the  committee  of  the  whole  and  to  sus- 
tain it  in  the  convention  for  quite  a  while ;  but  it  was 
developed  in  the  debates  that,  if  that  plan  was  adhered 
to,  many  of  the  states  would  withdraw  and  the  conven- 
tion would  be  compelled  to  adjourn,  or,  rather,  dissolve, 
without  coming  to  an  agreement.  All  of  the  delegates 
realized  the  disastrous  effect  an  adjournment  of  the  con- 
vention without  agreeing  to  a  plan  would  have  on  the 
union,  which  encouraged  a  spirit  of  compromise ;  and  a 
committee  was  chosen  consisting  of  a  member  from  each 
state,  who  readily  agreed  to  retain  the  political  cor- 
porations of  the  states  in  the  more  perfect  union,  and  pro- 
vided that  each  state  (in  its  political  organization)  should 
be  entitled  to  equal  representation  in  the  senate,  and  that 
the  house  of  representatives  should  be  apportioned 
among  the  states  according  to  the  number  of  inhabitants 
thereof. 

This  compromise  has  been  referred  to  before,  and  prob- 


ORGANIZATION    OF    LEGISLATIVE    DEPARTMENT.     II 7 

ably  ought  not  to  be  repeated,  but  it  ser\'es  the  purpose  of 
illustrating  the  importance  attached  to  a  representation  of 
the  political  corporation  of  the  respective  states.  It 
serv'es  to  show  that,  without  a  representation  of  the 
corporation  of  the  respective  states  in  the  legislative  de- 
partment of  the  union,  the  more  perfect  union  itself 
would  not  have  been  agreed  to,  and  could  not  have  been 
formed.  In  addition  to  the  great  importance  attached  to 
a  representation  of  the  corporations  of  the  states,  in  the 
federal  congress,  by  the  makers  of  the  constitution,  a  crit- 
ical examination  of  the  great  American  principles  will 
show  that  it  is  necessary  for  the  states,  as  corporate  or- 
ganizations, to  have  a  representation  in  the  congress  of 
the  union,  of  sufficient  strength  to  prevent  improper  legis- 
lation against  the  states,  and  to  enable  them  to  maintain 
jurisdiction  of  the  civil  laws  and  domestic  affairs,  as  pro- 
vided by  the  American  system  of  government. 

But  the  advocates,  of  electing  the  senators  by  the  peo- 
ple, instead  of  by  the  legislatures,  claim  that  the  election 
by  the  people  would  not  prevent  the  senators  from  still 
representing  the  states  as  political  corporations. 

But  unless  the  states,  in  their  organized  characters,  can 
elect  their  own  representatives  in  the  federal  congress, 
how  can  they  be  represented  therein  ? 

It  is  true  the  people  of  the  states  elect  the  legislature 
thereof,  and  those  legi.slatures  are  the  only  organs  of  the 
states  to  elect  their  respective  senators,  but,  when  so 
elected,  they  are  commissioned  as  representatives  of  the 
corporations  of  the  states,  and  pledged  to  maintain  the 
states  in  controlling  the  civil  laws  and  domestic  affairs 
thereof,  according  to  the  American  system,  and  to  elect 
them  by  the  people  would  annihilate  the  states,  and  simply 
amount  to  adding  two  more  representatives  of  the  people 
from  each  state  to  the  congress  of  the  United  States. 

The  senators  being  elected  by  the  political  organiza- 


Il8  CONSTITUTION   OP   THE   UNITED   STATES. 

tions  of  the  states,  they  would  naturally  be  more  likely 
to  feel  their  obligations  were  due  to  the  political  organiza- 
tions thereof,  and  more  closely  guard  the  rights  of  their 
state  governments  than  they  would  be  if  elected  by  the 
people  of  the  states. 

By  the  charters  or  constitutions  of  the  several  states, 
and  by  the  charter  or  Constitution  of  the  United  States, 
the  legislatures  of  the  respective  states  are  made  the 
organs  to  elect  the  senators  to  represent  the  states  in  the 
congress  of  the  United  States ;  and  the  distinction 
between  representation  of  the  people  of  the  states,  and 
the  organization  of  the  states,  was  closely  drawn  by  the 
framers  of  the  constitution,  when  they  provided  that  the 
constitution  should  not  be  amended  so  as  to  deprive  any 
state  of  equal  suffrage  in  the  senate.  They  clearly 
meant  to  provide  perpetually  for  the  equal  representation 
of  the  political  organizations  of  the  several  states  ;  there- 
fore, the  constitution  can  not  be  amended  so  as  to  authorize 
the  senators  in  the  United  States  congress  to  be  elected  by 
the  people,  without  ignoring  the  compromise  agreed  to  by 
the  grand  committee,  and  accepted  by  the  whole  con- 
vention, and  afterward  ratified  by  the  state,  which  was, 
probably,  the  only  plane  upon  which  those  favoring  a 
union  of  many  republics,  consisting  of  the  several  states, 
and  those  who  favored  a  consolidation  of  the  states  into 
a  "simple  republic"  (as  Mr.  Madison  expressed  it), 
could  have  been  brought  together  on,  and  should  be  sa- 
credly kept  and  closely  adhered  to. 

It  was  contended  •  in  the  convention  that  there  was 
danger  in  permitting  the  president  to  appoint  senators  to 
ofl&ces  of  trust,  etc.,  during  the  continuance  of  their  re- 
spective terms  in  office  ;  but  they  were  overruled,  on  the 
theory  that  the  president  ought  to  have  the  right  to  se- 
lect the  best  qualified  persons  for  the  various  offices  he 


ORGANIZATION    OF    LEGISLATIVE    DEPARTMENT.       II9 

was  authorized  to  fill,  although  they  might  be  then  hold- 
ing oflSce  of  honor,  trust  and  profit. 

Recent  events  show  the  wisdom  not  only  of  prohibiting 
the  president  from  appointing  senators  to  ofi&ces  of  honor, 
etc.,  but  that  it  would  have  been  wise  to  have  prohib- 
ited him  from  appointing  any  one  to  a  position  on  the 
recommendation  of  any  senator,  so  as  to  cut  him  off 
from  exerting  any  influence  over  the  senators  through 
his  appointing  power.  The  authority  of  the  senate  to 
choose  its  own  ofiScers  is  so  manifestly  necessar}'  that  it 
requires  no  comment. 

The  vice-president  is  required  by  the  constitution  to 
preside  over  the  senate,  but  the  senate  may  elect  one  of 
its  members  to  preside  in  the  absence  of  the  vice-presi- 
dent, or  when  he  may  be  performing  the  duties  of 
president. 

When  the  original  draft  of  the  constitution  was  com- 
pleted by  the  committee  on  detail,  the  senate  was  not 
vested  with  jurisdiction  to  try  impeachments  ;  that  juris- 
diction was  at  first  reposed  in  the  judiciary. 

But,  while  the  constitution  was  in  the  hands  of  the 
committee  on  style,  it  was  changed,  and  jurisdiction  of 
impeachments  was  vested  exclusively  in  the  senate.  As 
the  senators  represent  the  political  organizations  of  the 
states,  they  constitute  the  proper  tribunal  to  tr>^  all  im- 
peachments, and  experience  shows  this  to  have  been  a 
wise  provision.  Though  it  may  be  unwise  theoretically 
to  allow  so  small  a  proportion  as  two-thirds  of  one-half 
to  convict,  which  is  only  possible,  however,  for,  while 
one-half  of  the  members  thereof  constitute  a  quorum, 
and  two- thirds  of  those  present  may  convict,  which  is 
equal  to  one-third  of  the  whole,  it  is  not  probable  that 
only  one-half  of  the  members  of  the  senate  will  ever  be 
present  on  any  impeachment  trial. 


I20  CONSTITUTION   OF   THE   UNITED   STATES. 

Section  <f.. 

This  brings  us  to  the  consideration  of  the  powers  and 
duties  of  the  two  houses  of  congress  when  acting  to- 
gether. 

Par.  I.  "The  times,  places  and  manner  of  holding 
elections  for  senators  and  representatives  shall  be  pre- 
scribed in  each  state  by  the  legislature  thereof  ;  but  the 
congress  may  at  any  time  by  law  make  or  alter  such  reg- 
ulations, except  as  to  the  places  of  choosing  senators." 

Par.  2.  "The  congress  shall  assemble  at  least  once  in 
every  year,  and  such  meeting  shall  be  on  the  first  Monday 
in  December,  unless  they  shall  by  law  appoint  a  different 
day." 

The  congress  has  prescribed  the  times,  places  and 
manner  of  electing  senators  and  representatives,  except 
as  to  the  place  of  choosing  senators. 

The  act  of  congress  being  a  statute,  and  liable  to  be 
altered  at  any  time,  is  out  of  place  in  a  treatise  on  the 
constitution.  Though  it  is  of  such  importance  to  have 
the  election  for  congress  and  presidential  electors  held  on 
the  same  day  throughout  the  United  States,  it  may  not 
be  out  of  place  to  insert  it  here,  particularly,  as  the  sev- 
eral states  have  changed  their  constitutions,  fixing  their 
respective  state  elections  on  the  same  day,  to  avoid  the 
holding  of  more  than  one  election  in  any  one  year  ;  it  is 
not  likely  that  the  congress  will  change  that  day. 

The  congress,  in  the  exercise  of  its  authority  under 
the  latter  part  of  section  4  of  article  i,  just  quoted,  pro- 
vided for  the  election  of  senators  and  representatives,  as 
follows :  * 

Sec.    14.     "The   legislature   of   each  state,  which    is 


*  Title  2 — Revised  Statutes  of  the  Congress.     Chapter  i — Elec- 
tion of  Senators. 


ORGANIZATION   OF   LEGISLATIVE   DEPARTMENT.    121 

chosen  next  preceding  the  expiration  of  the  time  for 
which  any  senator  was  elected  to  represent  such  state  in 
congress,  shall,  on  the  second  Tuesday  after  the  meeting 
and  organization  thereof,  proceed  to  elect  a  senator  in 
congress. ' ' 

Sec.  15.  "Such  election  shall  be  conducted  in  the  fol- 
lowing manner  :  Each  house  shall  openly,  by  a  viva  voce 
vote  of  each  member  present,  name  one  person  for  sena- 
tor in  congress  from  each  state,  and  the  name  of  the  per- 
son so  voted  for  who  receives  a  majority  of  the  whole 
number  of  votes  cast  in  each  house,  shall  be  entered  on 
the  journal  of  that  house  by  the  clerk  or  secretary 
thereof ;  or  if  either  house  fails  to  give  such  majority  to 
any  person  on  that  day,  the  fact  shall  be  entered  on 
the  journal.  At  twelve  o'  clock  meridian  of  the  day  fol- 
lowing that  on  which  proceedings  are  required  to  take 
place  as  aforesaid,  the  members  of  the  two  houses  shall 
convene  in  joint  assembly,  and  the  journal  of  each  house 
shall  then  be  read,  and  if  the  same  person  has  received  a 
majority  of  all  the  votes  in  each  house,  he  shall  be  de- 
clared duly  elected  senator.  But  if  the  same  person  has 
not  received  a  majority  of  the  votes  in  each  house,  or  if 
either  house  has  failed  to  take  proceedings  as  required  by 
this  section,  the  joint  assembly  shall  then  proceed  to 
choose,  by  a  viva  voce  vote  of  each  member  present,  a 
person  for  senator,  and  the  person  who  receives  a  ma- 
jority of  all  the  votes  of  the  joint  assembly,  a  majority 
of  all  the  members  elected  to  both  houses  being  present 
and  voting,  shall  be  declared  duly  elected.  If  no  per- 
son receives  such  a  majority  on  the  first  day,  the  joint 
assembly  shall  meet  at  twelve  o'clock  meridian  of  each 
succeeding  day  during  the  session  of  the  legislature, 
and  shall  take  at  least  one  vote  until  a  senator  is 
elected." 

Sec.  16.    "Whenever  on  the  meeting  of  the  legislature 


122  CONSTITUTION   OF   THE   UNITED   STATES. 

of  any  state,  a  vacancy  exists  in  the  representation  of 
such  state  in  the  senate,  the  legislature  shall  proceed,  on 
the  second  Tuesday  after  meeting  and  organization,  to 
elect  a  person  to  fill  such  vacancy,  in  the  manner  pre- 
scribed in  the  preceding  section  for  the  election  of  a 
senator  for  a  full  term." 

Sec.  17.  "Whenever,  during  the  session  of  the  legis- 
latures of  any  state,  a  vacancy  occurs  in  the  representa- 
tion of  such  state  in  the  senate,  similar  proceedings  to 
fill  such  vacancy  shall  be  had  on  the  second  Tuesday 
after  the  legislature  has  organized  and  has  notice  of  such 
vacancy. ' ' 

Sec.  18.  "It  shall  be  the  duty  of  the  executive  of  the 
state  from  which  any  senator  has  been  chosen,  to  certify 
his  election,  under  the  seal  of  the  state,  to  the  president 
of  the  senate  of  the  United  States. ' ' 

Sec.  19.  "The  certificate  mentioned  in  the  preceding 
section  shall  be  countersigned  by  the  secretary  of  state, 
of  the  state." 

This  provision  has  gone  before  the  senate  of  the  United 
States  several  times  for  interpretation,  and  it  seems 
finally  settled  that  it  requires  a  majority  of  the  members 
elected  to  the  senate  and  house  of  representatives  of  the 
state,  when  in  joint  assembly  for  that  purpose  to  elect 
a  senator  to  the  congress  of  the  United  States,  and  they 
must  be  present  and  voting  to  constitute  a  quorum  for 
that  purpose  ;  that  is,  a  majority  of  the  two  houses 
added  together,  must  not  only  be  present,  but  must  vote, 
to  constitute  the  quorum  for  that  purpose.* 

By  this  act  of  congress,  each  state  that  is  entitled  to 
more  than  one  member  in  the  house  of  representatives,  is 
required  to  elect  its  members  by  districts  composed  of 
contiguous  territory,   but   the   state   or  territory  is  au- 


*  McCrery  on  Elections,  etc. 


ORGANIZATION   OF   LEGISLATIVE   DEPARTMENT.    1 23 

thorized  to  lay  off  the  congressional  districts  within  its 
borders.  And  representatives  to  congress  are  required 
to  be  elected  on  ' '  the  Tuesday  after  the  first  Monday  in 
November. ' '  * 

"All  votes  for  representatives  in  congress  must  be  by 
printed  or  written  ballots."! 

' '  The  time  for  holding  an  election  to  fill  a  vacancy-  of 
a  member  to  congress  in  a  state  or  territory  may  be  pre- 
scribed by  the  laws  of  such  state  or  territory'.  ";|: 

Section  22  of  said  chapter  and  title,  pro\dding  that,  if 
a  state  prescribes  any  disqualification  to  the  male  inhabit- 
ants thereof,  who  are  citizens  of  the  United  States,  other 
than  for  participation  in  the  rebellion  or  other  crime  ; 
shall  be  curtailed  in  its  representation  in  congress,  was  in- 
tended to  force  the  state  to  allow  colored  persons  residing 
therein  to  vote.  But  if  literally  interpreted,  must  include 
all  lunatics,  idiots,  and  illiterates,  not  only  of  that  state, 
but  those  of  any  other  state  who  may  be  temporarily  re- 
siding therein,  consequently  it  can  not  be  enforced  ;  and, 
therefore,  must  be  treated  as  void. 

By  the  second  paragraph  of  section  4,  the  congress  is 
required  to  assemble  once  every  year,  and  is  required  to 
meet  on  the  first  Monday  in  December  in  each  year,  un- 
less a  different  day  be  fixed  by  act  of  congress. 

As  the  congress  must  meet  in  ever>'  year,  no  session 
can  be  longer  than  a  year,  for  every  session  must  adjourn 
in  time  to  give  place  for  the  incoming  session,  as  no  two 
sessions  can  exist  at  one  and  the  same  time. 

By  the  second  section  of  article  one  it  is  provided  that, 
the  members  to  the  house  of  representatives  shall  be 
elected  every  second  year  ;  hence,  not  only  is  the  con- 
gress compelled  to  meet  ever>'  year,  but  the  members  of 


*  Sec.  25,  Chap.  2,  Title  2,  Rev.  Stats.  f  27  id.  J  26  id. 


124  CONSTITUTION   OF  THE  UNITED   STATES. 

the  house  of  representatives  must  go  out  of  ofl&ce  every 
two  years. 

The  senators  are  elected  for  six  years,  but  they  are 
divided  into  three  classes,  of  one-third  each,  and  the 
terms  of  the  classes  were  made  to  begin  at  different  times, 
and  so  arranged  as  that  one-third  thereof  go  out  of  ofl&ce 
every  two  years,  at  the  same  time  the  members  of  the 
house  of  representatives  go  out. 

Hence,  the  term  of  each  congress  is  two  years,  with  a 
session  thereof  every  year,  making  two  sessions,  usually 
spoken  of  as  the  first,  and  second  session,  of  a  particular 
congress. 

So,  that,  the  congress  of  the  United  States  has  a  time 
provided  by  law  to  convene  and  a  time  that  it  must  ad- 
journ, though  it  may  adjourn  on  its  own  motion  at  an 
earlier  date,  and  generally  does  adjourn  before  the  ses- 
sions expire  by  limitation. 

As  shown  in  the  first  chapter,  the  British  parliament 
has  no  time  fixed  by  law  to  meet,  and  must  be  called  by 
proclamation  or  royal  letter  of  the  king,  to  be  elected  be- 
fore it  can  meet,  and  its  sessions  may  be  prorogued  by 
the  king,  or  the  king  may  dissolve  the  parliament  at 
pleasure. 

Hence,  the  American  congress  has  vastly  more  power, 
as  a  department  of  the  government  of  the  United  States, 
than  the  parliament  possesses  in  the  government  of  Eng- 
land. 

The  congress  can  enact  no  law  without  the  approval 
of  the  president,  unless  the  congress  can  pass  it  over 
his  veto.  Still  the  president  constitutes  no  part  of  the 
congress,  either  in  theory  or  in  fact,  and  it  is  no 
part  of  his  duty  to  suggest  any  particular  legislation, 
except  through  proclamations,  or  messages  addressed  to 
the  congress,  giving  information  on  subjects  that  need 
legislation  ;  and  it  would  be  grossly  improper  for  him  to 


ORGANIZATION   OF   LEGISLATIVE   DEPARTMENT.    1 25 

interfere  with  the  congress  in  matters  of  policy,  for  if  he 
can  interfere  with  the  congress  as  to  its  legislation,  the 
congress  to  that  extent  would  be  reduced  below  a  co- 
equal department  of  the  government. 

The  appointing  power  of  the  president  is  immense, 
and  by  giving  to  one  member  of  congress  authority  to 
put  his  friends  in  office  under  his  appointing  power,  and 
refusing  that  advantage  to  others,  he  may  secure  the  re- 
election of  a  favored  member,  so  that  by  the  exercise  of 
that  power,  he  may  exert  quite  a  pernicious  influence 
over  the  members  of  congress,  and  induce  them  to  sup- 
port legislation  they  are  actually  opposed  to.  The 
exercise  of  that  power  in  that  way,  is  as  criminal,  as 
any  other  bribery,  and  ought  to  be  equally  a  cause  of 
impeachment. 

This  comparison  between  the  American  Congress  and 
the  British  parliament  is  drawn  because  the  former  was 
evolved  out  of  the  latter,  and  shows  the  advance  in  the 
direction  of  representative  government,  and  the  cor- 
responding curtailment  of  the  one-man  power,  and  the 
determination  of  the  American  people  to  so  guard  the 
representative  system  as  to  maintain  it  against  the 
natural  inclination  of  the  government  to  extend  the 
power  of  the  chief  executive. 

Sectio7i  5. 

Par.  I.  "  Each  house  shall  be  the  judge  of  the  election 
returns  and  qualifications  of  its  own  members,  and  a  ma- 
jority of  each  shall  constitute  a  quorum  to  do  business ; 
but  a  smaller  number  may  adjourn  from  day  to  day,  and 
may  be  authorized  to  compel  the  attendance  of  absent 
members,  in  such  manner  and  under  such  penalties  as 
each  house  may  provide. ' ' 

Par.  2.  "Each  house  may  determine  the  rules  of  its 
proceedings,  punish  its  members  for  disorderly  behavior, 


126  CONSTITUTION    OF   THE    UNITKD   STATES. 

and,  with  the  concurrence  of  two-thirds,  expel  a  mem- 
ber. ' ' 

Par.  3.  "Each  house  shall  keep  a  journal  of  its  pro- 
ceedings, and  from  time  to  time  publish  the  same,  ex- 
cepting such  parts  as  may  in  their  judgment  require  se- 
cresy  ;  and  the  yeas  and  nays  of  the  members  of  either 
house  on  any  question  shall,  at  the  desire  of  one-fifth  of 
those  present,  be  entered  on  the  journal." 

Par.  4.  "Neither  house,  during  the  session  of  con- 
gress, shall,  without  the  consent  of  the  other,  adjourn 
for  more  than  three  days,  nor  to  any  other  place  than 
that  in  which  the  two  houses  shall  be  sitting. ' ' 

The  first  paragraph  of  this  section  is  so  definite  that  it 
needs  no  comment  to  explain  its  meaning,  and  it  is  neces- 
sary that  they  should  be  authorized  to  determine  the 
election  returns  and  qualifications  of  its  members,  to  be 
able  to  know  who  is  entitled  to  take  part  in  the  proceed- 
ings in  their  respective  houses. 

The  provision  that  a  bare  majority  shall  constitute  a 
quorum,  while  arbitrary,  is  perhaps  as  reasonable  and 
just  a  rule  as  could  have  been  agreed  to.  And  all  will 
concede  that  each  house  should  have  power  to  prescribe 
its  own  rules  of  proceedings,  compel  the  attendance  of 
its  members,  punish  them  for  disorderly  behavior  and 
expel  them  when  necessary  ;  and  the  concurrence  of  two- 
thirds  of  the  members  is  a  reasonable  limitation  on  the 
exercise  of  this  latter  power. 

It  is  necessary  in  a  free  republic  to  publish  the  pro- 
ceedings of  the  legislative  department,  in  order  to  let  the 
people  know  how  their  business  is  being  conducted,  which 
can  not  be  done  without  keeping  a  journal  of  the  pro- 
ceedings thereof.  It  is,  however,  claimed  by  some  that 
one-fifth  of  the  members  is  too  small  a  number  to  be  in- 
trusted with  authority  to  demand  a  yea  and  nay  vote  in 


ORGANIZATION   OF   LEGISLATIVE   DEPARTMENT.     1 27 

each  house,  for  the  reason,  as  claimed,  it  weakens  the 
powers  of  the  legislature  of  the  United  States. 

It  may  cause  delay  in  conducting  the  business  ;  but  if 
calling  for  the  yea  and  nay  vote  would  have  the  effect  of 
changing  the  vote  of  any  one  member  of  either  house, 
that  effect  will  always  be  worth  the  delay  caused  by  it, 
and  doubtless  many  a  member  would  look  more  care- 
fully into  the  subject  under  legislative  consideration 
if  he  knew  that  his  constituents  would  know  how 
he  voted,  than  if  that  fact  was  to  be  concealed  from 
them. 

As  no  law  can  be  enacted  without  the  concurrence  of 
each  house,  prohibiting  either  house  from  adjourning 
longer  than  three  days  at  a  time  without  the  consent  of 
the  other,  is  not  only  necessary  to  secure  economy  and 
dispatch  in  conducting  the  business  of  the  congress,  but 
without  that  provision  either  house  might  adjourn  to  pre- 
vent action  on  some  bill  that  had  been  voted  for  by  the 
other  house  ;  as  it  might  be  that  the  vote  to  adjourn 
could  be  carried  without  a  yea  and  nay  vote,  although 
whenever  a  vote  could  be  reached  on  the  bill  it  would 
pass  in  the  house  voting  to  adjourn. 

Sometimes  any  tactics  will  be  resorted  to  by  either 
party  when  hard  pressed  by  the  other,  to  defeat  the 
enactment  of  laws  relating  to  the  political  policy  of  the 
respective  parties,  and  prohibiting  either  house  from  ad- 
journing without  the  consent  of  the  other  cuts  off  resort- 
ing to  that  scheme  to  defeat  legislation. 

Section  6. 
Par.  I.  "  The  senators  and  representatives  shall  receive 
a  compensation  for  their  serv'ices,  to  be  ascertained  by 
law,  and  paid  out  of  the  treasury'  of  the  United  States. 
They  shall  in  all  cases,  except  treason,  felony  and  breach  of 
the  peace,  be  privileged  from  arrest  during  their  attend- 


128  CONSTITUTION   OF   THE   UNITED   STATES. 

ance  at  the  session  of  their  respective  houses,  and  in  go- 
ing to  and  returning  from  the  same  ;  and  for  any  speech 
or  debate  in  either  house,  they  shall  not  be  questioned  in 
any  other  place. ' ' 

Par.  2.  "No  senator  or  representative  shall  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof  shall 
have  been  increased,  during  such  time  ;  and  no  person 
holding  any  office  under  the  United  States  shall  be  a 
member  of  either  house  during  his  continuance  in  office. 

That  the  members  of  each  house  should  be  paid  for 
their  services,  was  thought  to  be  necessary,  for  the  reason 
that  many  of  those  who  would  make  the  best  representa- 
tives of  the  interests  of  the  people,  were  too  poor  to  de- 
vote their  time  to  the  service  of  their  constituents  with- 
out pay  ;  and  to  adopt  the  Enghsh  rule  of  not  paying 
the  members  of  parliament,  would  tend  to  build  up  an 
aristocracy  in  the  congress,  and  bring  about  a  system 
of  legislating  to  enable  the  members  of  both  houses  of 
congress  to  get  rich  out  of  legislative  speculations. 

That  the  members  of  each  house  should  be  privileged 
from  arrest  while  attending  the  session  of  congress,  and 
in  going  to  and  from  the  same,  was  probably  prompted  by 
the  fact  that  imprisonment  for  debt  prevailed  in  some  of 
the  states  at  the  time  the  constitution  was  framed  ;  how- 
ever that  may  be,  the  members  of  each  house  while  at- 
tending the  sessions,  and  in  going  to  and  from  the  same, 
would  be  engaged  in  serving  the  public,  therefore  they 
ought  not  to  be  interfered  with  by  arrests,  except  in  cases 
of  treason,  felony  or  breach  of  the  peace. 

The  second  paragraph,  prohibiting  the  appointment  of 
members  of  either  house  to  offices  created  while  they 
were  in  congress,  or  to  offices  the  emoluments  of  which 


ORGANIZATION   OF   LEGISLATIVE   DEPARTMENT,    1 29 

shall  have  been  increased  while  they  were  in  congress,  is 
of  but  little  practical  value. 

Section  7. 

Par.  I.  "All  bills  for  raising  revenue  shall  originate  in 
the  house  of  representatives  ;  but  the  senate  may  propose 
or  concur  with  amendments,  as  in  other  bills. ' ' 

Par.  2.  "  Every  bill  which  shall  have  passed  the  house 
of  representatives,  and  the  senate,  shall,  before  it  be- 
comes a  law,  be  presented  to  the  president  of  the  United 
States  ;  if  he  approve  he  shall  sign  it,  but  if  not  he  shall 
return  it,  with  his  objections,  to  that  house  in  which  it 
shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If 
after  such  reconsideration  two-thirds  of  that  house  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  house,  by  which  it  shall  likev.'ise 
be  reconsidered,  and  if  approved  by  two-thirds  of  that 
house,  it  shall  become  a  law.  But  in  all  such  cases  the 
votes  of  both  houses  shall  be  determined  by  yeas  and  nays, 
and  the  names  of  the  persons  voting  for  and  against  the  bill 
shall  be  entered  in  the  journal  of  each  house  respectively. 
If  any  bill  shall  not  be  returned  by  the  president 
within  ten  days  (Sundays  excepted)  after  it  shall  have 
been  presented  to  him,  the  same  shall  be  a  law,  in  like 
manner  as  if  he  had  signed  it,  unless  the  congress,  by 
their  adjournment,  prevent  its  return,  in  which  case  it 
shall  not  be  a  law." 

Par.  3.  "  Every  order,  resolution  or  vote  to  which  the 
concurrence  of  the  senate  and  house  of  representatives 
may  be  necessary  (except  on  a  question  of  adjournment), 
shall  be  presented  to  the  president  of  the  United  States, 
and  before  the  same  shall  take  effect,  shall  be  approved  by 
him,  or,  being  disapproved  by  him,  shall  be  repassed  by 
two-thirds  of  the  senate  and  house  of  representatives,  ac- 


130  CONSTITUTION   OF   THE   UNITED   STATES. 

cording  to  the  rules  and  limitations  prescribed  in  the 
case  of  a  bill. ' ' 

This  section  defines  the  process  of  making  laws  by  the 
congress,  and  it  seems  so  explicit  that  it  can  not  be  made 
any  plainer. 

However,  it  will  be  seen  that  it  requires  every  order, 
resolution  or  vote  that  requires  the  concurrence  of  the 
senate  and  house  of  representatives,  except  that  of  ad- 
journment, to  be  laid  before  the  president  and  approved 
by  him  or  passed  over  his  veto  before  it  can  take  effect. 

Therefore,  while  the  president  constitutes  no  part  of 
the  law-making  authority  of  the  United  States,  he  is  a 
potent  agent  in  preventing  the  enactment  of  laws,  and  in 
that  way  may  dictate  what  laws  may  be  passed  by  the 
congress. 

This  brings  us  to  the  general  powers  vested  in  the 
congress. 

It  should  be  borne  in  mind  that  every  power  the  con- 
gress is  vested  with  must  have  been  delegated  by  the 
letter  of  the  constitution,  hence,  unless  it  can  be  found 
in  the  letter  of  that  instrument,  or  is  a  necessary  part  of 
a  power  granted  by  the  letter  thereof,  or  is  necessary  to 
the  execution  of  a  power  plainly  granted  by  that  instru- 
ment, it  must  be  construed  to  have  been  reserved  to  the 
states  respectively,  or  to  the  people. 


TO   LAY    AND   COLLECT   TAXES,  ETC.  I3I 


CHAPTER   V. 

TO  LAY  AND  COLLECT  TAXES — TO  COIN  MONEY — TO  REG- 
ULATE COMMENCE. 


Article  I. 
Section  8. 

Par.  I .    "  The  congress  shall  have  power — 

"  To  lay  and  collect  taxes,  duties,  imposts  and  excises, 
to  pay  the  debts  and  provide  for  the  common  defense 
and  general  welfare  of  the  United  States  ;  but  all  duties, 
imposts  and  excises  shall  be  uniform  throughout  the 
United  States." 

This  provision  taken  by  itself  appears  to  vest  the  con- 
gress with  unlimited  taxing  powers,  provided  the  tax  be 
laid,  for  the  purposes  of  paying  the  debts,  or  providing 
for  the  common  defense  or  general  welfare  of  the  United 
States,  and  also  provided  all  duties,  imposts  and  excise 
taxes  be  uniform  throughout  the  United  States. 

As  to  the  purpose  of  such  taxes,  there  is  no  other  de- 
partment or  officer  of  the  government  that  has  authority 
to  inquire  into  it,  except  the  president,  who  may  veto 
any  taxing  bill,  but,  after  the  president  approves  the  tax- 
ing bill,  the  only  relief  against  it  is  hy  the  action  of  the 
people  themselves,  who  can  elect  members  to  a  succeed- 
ing congress  who  will  pledge  themselves  to  repeal  it. 

Uniformity  throughout  the  United  States  applies  to 
the  whole  people  and  country,  without  regard  to  state 
boundaries,  with  a  hope  of  reaching  equality  through 
that  means. 

But  neither  exact  uniformity  nor  exact  equality  can 
be  expected    in  a  country  so   large,  extending   over  so 


132  CONSTITUTION   OF  THE   UNITED   STATES. 

many  degrees  of  latitude,  and  embracing  such  a  diversity  of 
climate  and  soil,  as  to  cause  the  cultivation  of  different  pro- 
ductions ;  for  even  the  respective  states,  being  so  much 
smaller,  and  confined  to  a  more  homogeneous  climate  and 
soil,  fail  to  reach  exact  equality  ;  however,  the  United 
States,  as  well  as  the  states,  may  closely  approximate 
equality  in  all  taxation. 

While  the  term  impost  includes  various  exactions  that 
may  be  imposed  on  a  people,  it  includes  an  import 
or  tariff  tax,  and  was  doubtless  intended  to  vest  the 
congress  with  the  power  of  laying  an  import  tax,  and  as 
the  congress  is  authorized  to  designate  what  articles  shall 
be  taxed,  it  may,  by  selecting  the  articles  to  be  put  under 
an  import  tax,  cause  that  tax  to  fall  more  heavily  on  one 
class  of  the  people  than  other  classes ;  or  it  may  be  made 
to  fall  heavier  on  the  people  of  some  of  the  states  than 
those  of  other  states ;  and  if  the  congress  is  authorized 
to  lay  a  particular  and  separate  rate  of  tax  on  each  article 
designated  to  be  taxed,  instead  of  an  ad  valoj^em  tax,  as 
contended  for  by  one  of  the  political  parties.  By  the 
designation  of  the  article  to  be  taxed,  and  the  rate  of 
tax  to  be  imposed  on  it,  great  injustice  may,  through 
party  zeal,  be  imposed  on  one  class  of  the  people,  or  on  the 
people  living  in  different  degrees  of  latitude.  But,  as  the 
limitation  of  uniformity  in  the  paragraph  under  considera- 
tion relates  to  the  effect  of  the  tax  rather  than  the  power 
to  impose  it,  the  judiciary  may  relieve  those  imposed  on 
from  the  unequal  burden,  without  inquiring  into  the  va- 
lidity of  the  act  of  congress  imposing  the  tax.  No  case 
involving  this  question  has  ever  been  passed  on  by  the 
supreme  court,  that  I  know  of. 

This  is,  however,  the  correct  interpretation  of  said 
paragraph.  Said  paragraph  proceeds  to  vest  the  congress 
with  power  to  lay  and  collect  taxes,  duties,  imposts  and 
excises,  and  then  proceeds  to  say,  "but  all  duties,  im- 


TO   LAY   AND   COLLECT  TAXES,  ETC.  1 33 

posts  and  excises  shall  be  uniform  throughout  the  United 
States;"  this  provision,  therefore,  applies  to  the  opera- 
tion of  the  taxing  law,  not  to  its  passage ;  indeed,  a  tax- 
ing law  might  be  uniform  when  enacted,  and  subsequent 
circumstances  might  arise  that  would  destroy  that  imi- 
formity  ;  it  is  true,  the  congress  could  repeal  it  as  soon  as 
it  lost  that  uniformity. 

But,  suppose  a  personal  interest  of  a  majority  of  the 
people  should  be  so  strongly  in  favor  of  retaining  the  un- 
equal law  as  to  prevent  its  repeal.  Or  suppose  a  ma- 
jority of  the  congressional  districts  should  send  repre- 
sentatives to  congress  pledged  to  enact  a  taxing  law  that 
would  bear  unequally  on  different  classes  or  localities ;  in 
neither  case  could  the  law  be  uniform,  and  must  impose 
unequal  burdens  on  certain  classes  or  sections  of  the 
United  States,  whenever  it  should  be  put  into  operation. 

If  this  language  had  been  put  in  form  of  a  proviso,  it 
would  have  applied  to  the  enactment  of  the  law,  not  to 
its  operation;  the  meaning  of  the  language,  therefore,  is 
that  the  effect  of  every  law  imposing  duties,  imposts  and 
excises  shall  operate  uniformly  throughout  the  United 
States.  So  that  whenever  the  want  of  uniformity  may 
appear  in  any  of  said  modes  of  taxation,  it  will  be  the 
duty  of  the  courts  to  enjoin  its  enforcement.  The  con- 
gress is  not  likely  to  intentionally  impose  excise  taxes 
unequally  without  a  motive. 

But  there  are  some  sections  of  the  United  States  in 
which  the  agriculture  or  planting  industries  prevail,  and 
in  other  sections  manufacturing  and  mercantile  enter- 
prises prevail.  The  more  dense  the  population  may  be, 
the  better  roads  and  other  conveniences  for  carr^'ing 
manufactured  articles  and  raw  material  to  and  from  the 
factory,  and  the  greater  facility  merchants  will  have  for 
selling  and  shipping.  Therefore,  if  the  tariff  tax  be  high 
enough  for  the  manufacturers  to  divide  the  profits  with 
the    merchants,    they   will  want    a   tariff    tax   to   pro- 


134  CONSTITUTION   OF   THE   UNITED   STATES. 

tect  them  in  their  business,  and  to  enable  them  to  control 
the  trade  of  the  agricultural  or  planting  section  of  the 
United  States.  While  those  who  may  be  engaged  in 
agriculture  or  planting,  having  no  competition  from 
abroad  in  the  sale  of  their  production  at  home,  would  not 
desire  any  protective  tariff  to  aid  them,  particularly  as  a 
large  part  of  their  productions  must  go  to  a  foreign 
market  for  sale,  and  as  they  sell  to  a  foreign  market,  they 
would  wish  to  buy  their  supplies  from  that  foreign 
market,  and  to  get  them  as  cheap  as  possible.  This  con- 
flict in  interest  necessarily  leads  to  a  conflict  in  political 
policy,  and  has  built  up  two  great  political  parties  in  the 
United  States,  one  in  favor  of  arranging  the  tariff  taxa- 
tion so  as  to  protect  home  industries  without  regard 
to  revenue  for  the  United  States.  The  other  party 
denying  the  right  of  the  congress  to  tax  one  part  of 
the  country  for  the  benefit  of  another,  or  to  tax  the 
people  engaged  in  one  occupation  for  the  benefit  of 
those  enga[;ed  in  other  occupations.  And  while  they 
admit  the  authority  of  the  congress  to  designate  the 
imported  articles  to  be  taxed,  they  deny  the  authority 
of  congress  to  impose  higher  rates  of  duty  on  some 
articles  than  on  others,  and  insist  that  the  congress 
must  tax  all  imported  articles  at  the  same  rates  accord- 
ing to  the  value  thereof — this  is  known  as  the  ad 
valorem  system,  and  the  former  is  known  as  the  specific 
tariff  system. 

If  the  powers  of  the  congress  is  limited  to  the  ad  va- 
lorem system,  it  will  greatly  weaken  its  ability  to  impose 
unequal  burdens  upon  some  sections  of  the  country,  for 
the  benefit  of  other  sections,  or  from  imposing  unequal  tax- 
ation on  one  or  more  classes  of  occupations  for  the  benefit 
of  other  occupations. 

For  the  character  of  clothing,  and  other  merchandise, 
used  in  the  agricultural  parts  of  the  union  are  of  a  much 


TO   LAY   AND   COLLECT   TAXES,    ETC.  1 35 

cheaper  grade  than  those  used  in  the  mercantile  cities 
and  manufacturing  districts. 

So  that  to  provide  the  protection  demanded  by  the  mer- 
chants and  manufacturers,  the  articles  taxed  by  the  tariff 
must  be  limited  to  the  articles  used  mostly  in  planting 
states,  or  sections,  of  the  union  ;  and  those  cheap  goods 
must  be  taxed  at  a  higher  rate  than  the  better  grade  of 
goods  used  in  the  manufacturing  districts  and  mercantile 
cities.  As  the  tariff  on  home  goods  is  high  enough 
to  prevent  importation,  the  manufacturer  wnth  the  aid 
of  the  merchant  is  enabled  to  force  all  laborers  within 
any  part  of  the  United  States  to  use  goods  of  that  grade, 
manufactured  under  that  tariff  protection ;  and  there 
being  more  laboring  people  to  be  clothed  in  the  United 
States  than  idle,  fine  dressing  people,  such  a  tariff  tax 
would  reach  the  whole  laboring  class  of  citizens,  for  the 
benefit  of  the  manufacturers  and  merchants. 

The  other  political  party  insists  that  it  is  the  duty  of 
the  United  States  to  protect  the  manufacturing  enter- 
prises, in  the  discharge  of  the  duty  imposed  on  the  con- 
gress, to  provide  for  the  general  welfare  of  the  United 
States,  and  that  the  congress  has  the  right  to  tax  the 
people  in  any  authorized  way,  to  build  up  manufactures 
in  the  interest  of  the  general  welfare  of  the  United 
States.  It  is,  however,  beyond  my  purpose  in  gi\-ing 
this  review  to  discuss  the  political  features  of  any  ques- 
tion any  further  than  they  may  be  necessary  to  elucidate 
some  provisions  of  the  constitution.  I  -^-ill  leave  this 
branch  of  the  question,  and  take  up  the  constitutional 
authority  of  the  congress  to  discriminate  in  the  matter  of 
taxation,  or  any  other  imposition  on  the  citizens,  in  the 
nature  of  governmental  duties. 

The  congress,  undoubtedly,  is  authorized  to  "lay 
and  collect  taxes,  duties,  imposts  and  excises,  to  pay  the 


136  CONSTITUTION   OF   THK   UNITED   STATES. 

debts  and  provide  for  the  common  defense  and  the  gen- 
eral welfare  of  the  United  States,"  and  may  select  the 
objects  of  such  taxation. 

' '  But  all  duties,  imposts  and  excises  shall  be  uniform 
throughout  the  United  States,"  and  "no  capitation  or 
other  direct  tax  shall  be  laid,  unless  in  proportion  to 
the  census  or  enumeration  hereinbefore  directed  to  be 
taken."* 

' '  No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  state,  "f 

' '  No  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  state  over  those 
of  another ;  nor  shall  vessels  bound  to,  or  from  one 
state,  be  obliged  to  enter,  clear  or  pay  duties  in 
another. ' '  J 

While  the  word  equality  is  not  used  in  either  of  these 
provisions,  they  show  that  equality  in  the  burdens  of  the 
government  was  the  design  of  each  one  of  them.  But 
for  the  purpose  of  inquiring  into  the  power  of  the  con- 
gress to  lay  and  collect  taxes,  etc.,  suppose  we  admit 
that  equality  is  not  required  by  said  provision  of  the  con- 
stitution, and  if  uniformity  throughout  the  United  States 
be  followed  by  the  congress,  in  taxation  and  laying  burdens 
on  the  people,  nothing  else  can  be  required  ;  still  it  will 
be  difficult  to  see  how  the  congress  can  lay  and  collect  a 
tariff  tax  for  the  purpose  of  protecting  manufacturing 
enterprises,  although  they  may  redound  to  the  general 
welfare  of  the  United  States,  for  the  simple  reason  that 
any  tariff  tax  that  will  afford  protection  to  any  particular 
character  of  industry,  can  not  be  made  uniform  through- 
out the  United  States. 

For,  to  protect  an  industry  by  means  of  a  tariff  tax, 


Art.  I,  Sec.  9,  Par.  4,  Con.  t  Id.  Par.  5,  J  Id.  Par.  6. 


TO    LAY   AND    COLLECT    TAXES,    ETC.  1 37 

that  tax  must  fall  exclusively  on  other  industries  in 
order  to  protect  the  favored  industry,  every  tariff  tax 
must  therefore  bear  unequally,  to  favor  any  one  industry 
over  others. 

However,  a  tariff  tax  intended  to  be  both  equal  and 
uniform  may  operate  more  beneficially  to  one  character  of 
industry  than  to  another  ;  in  all  such  cases  the  object  of 
the  taxing  law  is  equality,  therefore,  its  unequal  bearing 
must  be  so  slight  as  not  to  impose  heavy  burdens  on  any 
class  or  classes.  But  whether  the  inequality  of  the  tariff 
tax  proceeds  from  design  or  accident,  the  United  States 
includes  such  a  variety  of  climate,  and  the  productions 
and  industries  are  of  such  a  heterogeneous  character, 
as  to  make  it  impossible  for  the  congress  to  enact  a 
tariff  law  that  discriminates  between  classes  of  occupa- 
tions, that  will  not  also  discriminate  between  localities, 
and,  therefore,  lack  the  uniformity  required  by  the  con- 
stitution. 

Such  discriminations  are  further  guarded  against  by 
the  following  provisions : 

' '  No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  state." 

' '  No  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  state  over  those 
of  another ;  nor  shall  vessels  bound  to,  or  from,  one 
state  be  obliged  to  enter,  clear  or  pay  duties  in  an- 
other." 

These  two  paragraphs  clearly  show  the  right  of  the 
states  to  require  uniformity  of  tariff  or  import  taxa- 
tion, but  they  appear  to  be  limitations  on  the  power 
of  the  congress  to  enact  a  law  taxing  articles  ex- 
ported from  any  state,  or  showing  a  preference  to  the 
ports  of  one  or  more  states  over  those  of  other  states, 
and  when  such  discrimination  is  shown  the  law  itself  is 
void,  because  the  congress  had  no  authority  to  pass  it ; 


138  CONSTITUTION   OF   THE  UNITED   STATES. 

ou  the  contrary  was  expressly  prohibited  from  pass- 
ing it. 

It  is  not  clear  what  steps  the  states  can  take  to  en- 
force their  rights  to  uniformity  in  that  character  of 
burdens.  However,  the  importer  of  the  articles  so 
taxed  may  raise  the  question  by  refusing  to  pay  the 
duty,  and  let  the  custom  oflScer  seize  them  to  be 
sold  for  the  duty  on  them ;  then  the  importer  can 
sue  for  the  articles,  and  use  the  name  of  his  state, 
if  it  had  been  discriminated  against,  in  conjunction 
with  his  own  name  ;  and  should  the  court  find  that 
a  preference  had  been  shown  to  the  ports  of  one  state 
over  those  of  another,  the  court  would  be  compelled 
to  hold  the  law  void  ;  or  if  it  should  be  found  that 
the  tax  was  not  uniform  throughout  the  United  States, 
the  court  being  required  to  look  to  the  effect  of  the 
act  of  congress  relating  thereto,  not  to  the  validity 
thereof,  would  be  compelled  to  grant  the  relief,  and 
have  the  articles  delivered  without  payment  of  the  duty 
on  them. 

There  is  still  a  further  limitation  on  the  power  of  the 
congress  to  lay  and  collect  taxes,  as  follows  : 

"  No  capitation,  or  other  direct  tax,  shall  be  laid,  un- 
less in  proportion  to  the  census  or  enumeration  hereinbe- 
fore directed  to  be  taken. ' ' 

Every  direct  tax  is  not  necessarily  a  capitation  or  per- 
sonal tax,  as  in  the  case  of  taxing  lands,  which  are  always 
taxed  specifically,  without  regard  to  the  ownership  of 
them,  or  liens  upon  them,  though  every  capitation  or 
personal  tax  must  be  direct. 

The  language  ' '  no  capitation  or  other  direct  tax  ' '  was 
evidently  intended  to  include  every  character  of  personal 
tax,  and  probably  the  tax  on  land  was  not  on  the  minds 
of  the  framers  of  the  constitution,  as  either  a  capitation 


To   LAY   AND   COLLECT   TAXES,    ETC.  1 39 

or  direct  tax  ;  for  no  people  can  constitute  a  nation,  or 
state,  without  a  territorial  boundary  to  own  and  possess 
to  the  exclusion  of  all  other  people.  Hence,  to  consti- 
tute a  state  or  nation,  there  must  be  a  people  separate 
from  and  distinguishable  from  every  other  people, 
who  must  have  possession  and  control  of  a  territo- 
rial boundary,  separated  and  distinguishable  from  the 
balance  of  the  territory  of  the  world,  with  power  to 
exclude  it  from  the  use  or  occupation  of  all  other 
people,  except  by  sufferance  of  themselves  ;  therefore,  no 
state  treats  the  lands  within  its  borders  as  personal 
property  in  its  taxing  laws,  but  lays  taxes  on  the  lands 
specifically.  It  is  true  the  owner  of  the  land  is  named  in 
the  tax  levy  or  assessment  as  the  one  who  is  to  pay  the 
tax,  though  not  as  following  his  person  as  owner  thereof, 
but  rather  as  the  occupant  paying  a  rent  charge  to  the 
state  as  lord  of  the  fee  than  as  a  tax  due  from  the  occupant 
as  owner  thereof. 

The  facts  are,  the  final  and  absolute  title  to  the  lands 
in  the  several  states  of  this  union  belongs  to  the  state  in 
which  they  are  situated,  and  the  citizen  to  whom  it  ap- 
pears to  belong  owns  simply  an  estate  therein,  which 
must  always  be  subject  to  the  support  of  the  state,  as  the 
only  safe  reliance  from  which  to  obtain  the  necessary 
means  to  defray  the  expenses  of  the  state  government ; 
and  in  order  to  retain  ab.solute  contral  of  the  lands 
therein,  the  state  retains  the  absolute  title  and  eminent 
domain  of  all  the  lands  within  its  borders  as  a  necessarj' 
attribute  of  its  sovereignty. 

Furthermore,  at  the  time  the  constitution  was 
adopted,  many  of  the  states  had  more  vacant  land 
within  their  respective  borders  than  had  been  appro- 
priated or  settled,  and  as  the  apportionment  of  direct 
taxes  was  required  to  be  made  according  to  the  enumera- 


140  CONSTITUTION    OF   THE   UNITED    STATES. 

tion  of  the  population,  without  regard  to  the  property,, 
or  the  value  of  the  taxable  property  within  each  state, 
the  small  states  with  but  little  vacant  and  unappropriated 
lands  would  have  been  imposed  on  by  an  unequal  taxa- 
tion by  the  terms  of  a  provision  intended  to  give  them 
equal  protection  under  the  constitution. 

If  the  absolute  title  and  eminent  domain  to  the  lands 
within  the  states  be  recognized  to  be  in  the  state,  or  the 
great  body  of  the  people  thereof,  as  sovereign  owners  of 
it,  and  that  nothing  passes  by  the  patent  for  the  land  ex- 
cept an  estate  less  than  the  absolute  fee,  the  state  retain- 
ing the  absolute  title  in  itself,  as  lord  of  the  fee,  and 
therefore  not  subject  to  be  taxed  by  the  United  States,  it 
will  greatly  simplify  the  method  of  laying  and  collecting 
direct  taxes  by  the  congress.  As  all  valuable  stocks  in 
corporations,  and  all  mortgage  bonds,  are  secured  by 
liens  on  whatever  estate  in  land  that  passes  under  the 
patent  to  the  grantee,  hence  if  the  patentee  gets  less  than 
the  absolute  title  by  the  grant,  nothing  more  than  that 
which  passes  to  the  patentee  can  be  pledged  to  secure 
such  stocks  or  bonds  ;  therefore,  neither  can  be  treated 
as  part  of  the  land.  The  absolute  title  in  the  lands  them- 
selves being  retained  in  the  state,  they  could  not  be  mort- 
gaged or  pledged.  Though  whatever  estate  may  have 
passed  by  the  patent  would  be  subject  to  be  pledged  to  se- 
cure the  stocks  or  bonds  aforesaid,  and  such  stocks  and 
bonds  would  depend  on  an  estate  carved  out  of  land,  and 
not  on  land  itself,  therefore,  while  such  stocks  and  bonds 
may  be  said  to  constitute  a  part  of  the  estate  in  the  lands 
pledged  to  secure  them,  they  could  not  be  held  to  be  any 
part  of  the  lands  so  pledged,  any  more  than  a  lease  for  a 
term  of  years  of  the  land,  and  the  profits  arising  out  of 
such  a  lease,  and  such  estates  in  lands  being  equitable 
charges,  carved  out  of  the  estate  granted  by  the  state  in 


TO   LAY  AND   COLLECT   TAXES,  ETC.  I41 

the  patent  to  the  land  ;  the  right  thereof  attaches  to  the 
person,  and  follows  the  stocks  and  bonds  into  the  hands 
of  whomsoever  they  may  pass,  and  the  courts  of  any 
state  having  jurisdiction  of  the  person  of  the  holder 
thereof  may  adjudicate  as  to  the  right,  though  by  special 
laws  of  the  respective  states,  statutes  to  foreclose  mort- 
gages therein  have  been  made  local.  But  this  provision 
of  the  legislatures  of  the  states  can  not  be  strictly  ad- 
hered to,  for  in  case  of  a  mortgage  on  a  railroad  extend- 
ing through  two  or  more  states,  the  courts  of  either  state 
have  jurisdiction  to  foreclose  the  mortgage  and  order  a 
sale. 

Stocks  and  bonds  constitute  the  great  bulk  of  the 
money  capital  of  this  country,  and  if  they  are  to  be 
treated  as  a  part  of  the  lands  in  regard  to  taxation,  it 
will  so  limit  the  powers  of  congress  in  laying  and  collect- 
ing taxes  to  pay  the  public  debt  and  provide  for  the  pub- 
lic defense  as  to  cause  great  embarrassment  and  delay  in 
providing  for  the  general  welfare  of  the  United  States, 
while  if  such  stocks  and  bonds  be  treated  as  part  of  an 
estate  carved  out  of  the  land,  they  may  be  taxed  on  ex- 
cise principles  in  form  of  an  income  tax,  and  thereb}'  do 
away  with  the  necessity  of  apportioning  that  tax  among 
the  states  as  a  direct  tax. 

The  difficulty  in  laying  and  collecting  taxes  on  land  by 
the  congress  is  sufficient  to  prevent  them  from  being 
taxed  at  all  for  purposes  of  the  United  States,  and  if  the 
stocks  and  bonds  of  railroads,  telegraph  lines,  street  rail- 
roads, ice  factories,  and  the  like,  are  to  be  regarded  as  a 
part  of  the  land  included  in  the  mortgage  to  secure  them, 
they  will  also  escape  federal  taxation  ;  and  as  that  char- 
acter of  property  has  grown  to  such  a  large  volume  of 
the  taxable  property,  if  the  congress  is  to  be  deprived  of 
the  use  of  that  source  of  raising  revenue  to  pro^'ide  for 
the  payment  of  the  debts  and  the  common  defense  and 


142  CONSTITUTION   OF  THE  UNITED   STATES. 

general  welfare  of  the  United  States,  it  will  amount  to  a 
serious  obstacle  in  the  exercise  of  the  taxing  power  of 
congress,  and  may  interfere  with  providing  for  the  public 
defense. 

Power  to  Borrow  Money  and  to  Coin  Money — State  Pro- 
hibited f  rani  Coining  Money. 

Article  I,  Sec.  8.   "  Congress  shall  have  power — " 

Par,  2.  "To  borrow  money  on  the  credit  of  the 
United  States." 

Par.  5.  "To  coin  money,  regulate  the  value  thereof, 
and  of  foreign  coin,  and  fix  the  standard  of  weights  and 
measures. ' ' 

Sec.  10,  Par.  I.  "  No  state  shall  .  .  .  coin  money  ; 
emit  bills  of  credit ;  make  any  thing  but  gold  and  silver 
coin  a  tender  in  payment  of  debts  ;  pass  any  bill  of  at- 
tainder, ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts  ;  or  grant  any  title  of  nobility." 

These  three  provisions  relate  to  each  other,  and  consti- 
tute part  of  the  same  objects  provided  for  by  the  constitu- 
tion, and  should  be  considered  together  as  one  subject. 
The  money  authorized  to  be  borrowed  by  the  congress, 
was  intended  to  be  current  and  final  redemption  money, 
without  a  guarantee  from  the  United  States,  or  any  other 
government,  or  any  bank  or  company  to  redeem  it. 

For  should  the  United  States  obligate  themselves  to 
guarantee  the  redemption  of  the  money  so  borrowed, 
every  borrowing  might  include  an  obligation  to  pay  twice 
for  the  same  loan,  in  the  event  the  maker  of  the  money 
so  borrowed  should  fail  to  redeem  the  same. 

Money  had  a  known  meaning  at  the  time,  and  long  be- 
fore the  constitution  was  made,  it  was  used  long  before 
the  birth  of  Christ,  and  in  all  nations,  it  was  understood 
to  indicate  that  which  had  been  agreed  on  to  express 
values,    a  medium  of   exchange  to   pay  debts   on   final 


TO   LAY   AND    COLLECT   TAXES,    ETC.  143 

settlement,  or  as  expressed  by  Abraham  in  the  purchase 
of  Machpelah,  "current  money  with  the  merchant,"  as 
the  only  indorsement  of  it. 

The  business  world  had  agreed  that  gold  and  silver  were 
the  best  metals  of  which  to  make  money  ;  indeed,  as  far 
back  as  history  reaches,  gold  and  silver  coin  were  both 
used  as  redemption  money  ;  the  coins,  however,  were  not 
always  stamped  by  government  authority,  nor  by  indi- 
vidual guarantee. 

Mr.  Hallam,  in  his  Middle  Ages,  gives  an  account  of 
tampering  with  the  coins,  by  the  Jewish  and  Lombard 
usurers ;  he  says  the  coins,  in  some  instances,  were  re- 
duced by  them,  to  one-half  weight,  which  caused  great 
distress  in  France  ;  but  as  prices  went  up  on  the  clipped 
coin,  in  England,  that  nation  was  benefited  by  it  for  a 
short  while  ;*  but  they  soon  grew  into  disfavor,  and  a 
company  of  German  traders,  who  used  the  coins  of  a 
higher  grade,  both  of  gold  and  silver,  the  stamp  value  of 
which,  both  as  to  the  fineness  and  weight,  were  entirely 
satisfactory'  to  the  English  people.  As  those  traders 
came  from  the  east  of  England,  they  were  called  Easter- 
lings,  and  their  coins  were  also  called  easterlings,  and 
then  abbreviated  into  sterlings  ;  those  coins  were  esteemed 
so  highly  by  the  English  people  that  the  parliament  by 
act  of  Edward  III,  ch.  13,  adopted  that  system  of  coin- 
age for  that  kingdom,  both  as  to  the  gold  and  silver 
coins  ;  however,  the  English  shilling  was  retained  as  a 
unit  of  values.! 

Without  a  legislative  act  fixing  the  weight  and  fine- 
ness of  coins,  and  making  them  a  tender  in  paj-ment  of 
debts,  by  force  of  law,  their  value  will  be  regulated  by 
common  consent,   and  that  consent   is  not  hkely  to  be 


*  Kallam's  Middle  Ages,  pp.  483-486,  497-500. 
t  Blackstone's  Com.,  vol.  i,  p.  278. 


144  CONSTITUTION   OF   THE   UNITED   STATES. 

given  unless  the  coins  contain  sufficient  precious 
metals  to  make  them  approximate  their  coin  or  stamp 
value.  And,  as  the  coins  of  all  redemption  money  must 
be  taken  together,  to  arrive  at  their  relative  value  as 
money,  to  the  commodities  they  represent,  and  also  the 
commercial  ratio  between  the  metals  of  which  they  are 
made  must  be  considered,  in  ascertaining  the  quantity 
of  metal  to  be  put  into  the  coins  of  each  ;  it  must  re- 
main difficult  to  determine  what  shall  constitute  the  sign 
by  which  to  express  values,  particularly  as  the  precious 
metals  themselves  fluctuate  in  value. 

Mr.  Blackstone  says:  "As  the  quantity  of  precious 
metals  increases,  that  is,  the  more  of  them  there  is  ex- 
tracted from  the  mines,  this  universal  medium  or  common 
sign  will  sink  in  value  and  grow  less  precious.  Above  a 
thousand  millions  of  bullion  are  calculated  to  have  been 
imported  into  Europe  from  America  within  less  than 
three  centuries ;  and  the  quantity  is  daily  increasing. 
The  consequence  is  that  more  money  must  be  given  now 
for  the  same  commodity  than  was  given  an  hundred 
years  ago.  And,  if  any  accident  were  to  diminish  the 
quantity  of  gold  and  silver,  their  value  would  propor- 
tionately rise.  A  horse  that  was  formerly  worth  ten 
pounds  is  now  perhaps  worth  twenty,  and,  by  any  failure 
of  current  specie,  the  price  may  be  reduced  to  what  it 
was. ' '  * 

This  fluctuation  in  the  value  of  the  precious  metals 
must  be  estimated  by  combining  the  value  of  both,  to 
get  at  their  true  value  or  relation  to  the  commodities  they 
are  to  be  used  to  give  expression  to  the  value  of.  For, 
if  the  coins  of  both  gold  and  silver  be  recognized  as  final 
redemption  money,  and  the  coins  of  only  one  of  these 
metals  be  estimated  in  ascertaining:  the  relation  of  the 


*  Blackstone.  vol.  i,  p.  276. 


TO    LAY    AND    COLLKCT   TAXES,    ETC.  I45 

final  redemption  money  to  the  commodities  to  be  repre- 
sented by  both,  the  value  of  the  sign,  or  coins,  would  be 
too  high,  and  the  commodities  measured  by  one  only 
would  be  correspondingly  too  low,  and  the  trading  public 
w'ould  not  agree  to  such  expression  of  the  value  of  their 
commodities. 

Consequentl}^,  the  coin  of  both  metals  must  be  counted 
together,  to  indicate  their  relation  to  the  commodities 
they  are  to  express  the  value  of. 

Coins,  or  specie,  used  as  final  redemption  money,  being 
estimated  partly  by  the  commercial  value  of  the  precious 
metal  in  them,,  and  partly  by  the  uses  they  may  be  put 
to,  as  a  measure  of  values,  and  exchange  for  all  articles 
of  trade,  the  precious  metal  put  in  them  need  not  have 
a  commercial  value  equal  to  the  coin  or  stamp  value  to 
make  them  pass  at  their  stamp  value  ;  indeed,  the  value 
of  the  convenience  of  their  use  to  express  the  price  of 
all  articles  of  commerce,  and  of  being  used  in  exchange 
of  all  articles  of  trade,  constitute  the  principal  value  of 
the  coins  ;  neither  gold  nor  silver,  as  metals,  deprived  of 
being  used  as  money,  would  sell  for  half  as  much  as  the 
bullion  thereof  will  bring,  as  long  as  it  may  be  con- 
verted into  money  of  final  redemption,  for,  whenever 
the  use  of  either  of  them  as  materials  of  which  to 
make  money  ceases,  more  than  half  of  the  demand  for 
them  wall  also  cease,  and  the  metal  of  each  will  neces- 
sarily sink  to  less  than  half  of  its  present  value,  if  not 
more. 

Whenever  the  coins  become  more  or  less  numerous, 
the  value  of  them  will  change  in  obedience  to  the  laws  of 
supply  and  demand  ;  however,  as  the 5'  have  a  fixed  sign  or 
index  by  which  to  express  values  stamped  on  them  when 
coined,  which  can  not  be  changed,  the  price  of  the  arti- 
cles of  commerce  they  are  used  to  express  the  value  of 
must  change  to  comport  with  the  changed  value  of  the 


146  CONSTITUTION    OF   THE;   UNITED    STATES. 

coin  to  be  used  as  a  sign  or  index  thereof,  so  that  when- 
ever the  signs  are  scarce,  commodities  must  go  down,  and 
whenever  they  are  abundant,  the  prices  of  commerce 
must  go  up. 

And,  if  the  specie  of  the  country  shall  consist  of 
two  or  more  metals,  the  coins  will  be  estimated  by  the 
ratio  of  the  supply  and  demand  of  each  metal  of  which 
they  are  made,  unless  the  government  making  the 
coins  shall  coerce  the  people  to  take  them,  by  making 
them  a  legal  tender,  in  which  event  it  will  become  a 
matter  of  but  little  concern  to  the  trading  public  what 
the  value  of  the  metal  in  them  may  be  ;  but,  unless 
the  coins  be  made  a  legal  tender,  they  will  not  take 
them^  unless  the  metal  in  them  has  a  commercial  value, 
approximately,  equal  to  their  coin  value. 

However,  as  the  law,  making  the  coins  a  legal  tender 
can  not  be  made  to  operate  any  where  except  in  the 
nation  making  them  a  legal-tender,  it  will  be  better  for 
the  people  of  the  nation  making  its  coins  a  legal-tender, 
that  the  value  of  the  metal  of  which  they  are  made 
should  have  a  commercial  value  approximately  equal  to 
the  stamp  value.  The  precious  metal  in  the  coins  of  the 
United  States  has  always  had  a  commercial  value  equal 
to  the  coin  value,  except  in  the  case  of  the  silver  coins 
under  what  is  known  as  the  Bland- Allison  Act  of  1878, 
and  what  is  known  as  the  Sherman  Act  of  1891.  Under 
each  of  said  acts,  the  silver  coins,  as  well  as  the  silver 
metal  in  them,  was  so  hostilely  decried  against  by  the 
government  of  the  United  States,  as  to  cause  the  price  of 
the  metal  in  the  coins  to  sink  below  the  coin  value^ 
And  the  mints,  by  those  acts,  being  closed  against  the 
coinage  of  silver  on  individual  account,  and  open  only  on 


TO    LAY    AND    COLLFXT   TAXEvS,    ETC.  147 

account  of  the  government  of  the  United  States,  and, 
the  coins  being  made  legal  tender  in  the  payment  of  only 
such  debts  as  should  not  otherwise  be  provided  for  by 
contract ;  the  silver  coins  therefore  fell  in  value. 

The  prohibition  against  the  coinage  of  silver  on  in- 
dividual account,  and  the  government  being  limited  in 
the  quantity  of  silver  it  could  coin,  at  once  destroyed  the 
market  for  a  large  part  of  the  silver  bullion,  which  neces- 
sarily reduced  its  commercial  value.  Moreover,  the  au- 
thority to  destroy  the  legal  tender  feature  of  the  silver 
coins  by  contract,  while  the  gold  coin  was  to  remain  a 
legal  tender,  so  decries  the  silver  coins  themselves,  as  to 
make  them  form  a  lower  grade  of  money  than  that  which 
is  represented  by  the  gold  coins  ;  and,  therefore,  estab- 
lishes two  grades  of  money,  the  one  based  on  gold  coins, 
and  the  other  on  the  decried  silver  coins ;  to  the  great 
injury  of  the  producing  classes,  and  to  the  advantage  of 
brokers  and  persons  who  deal  in  exchange  and  invest- 
ments in  bonds. 

As  silver  coins  are  used  in  the  small  transactions,  and 
in  purchasing  the  daily  subsistence  of  life,  the  people  be- 
come more  familiar  with  them  than  with  gold  coins ;  and 
as  nations  usually  begin  their  existence  with  a  people  of 
moderate  means  whose  trade  is  small  in  amount,  the  first 
coins  are  usually  made  of  silver,  and  then,  as  the  people 
grow  in  wealth,  they  need  gold. 

It  is  claimed  that  England  in  adopting  the  pound  ster- 
ling, as  its  criterion  of  coinage  both  as  to  silver  and  gold 
in  the  same  act  of  its  parliament,  constituted  its  unit  of 
gold,  but  that  is  a  mistake,  for  England  had  coined  her 
shilling  of  silver  long  before  tha  act  of  its  parliament, 
though  the  quantity  of  pure  metal  in  the  shilling  and  prob- 
ably the  weight  of  it  had  been  changed  ;  however,  every 


148  CONSTITUTION   OF   THE   UNITED   STATES. 

coin  authorized  by  that  act  (adopting  the  pound  ster- 
ling), indirectly  related  to  the  English  shilling,  and  its 
value  measured  by  that  shilling  ;  so  that  really  no  part 
of  the  easterling  system  of  coinage  was  adopted  by  said 
act  of  parliament,  except  the  quality  thereof. 

By  the  act  of  congress  of  1873  an  attempt  was  made  to 
establish  a  gold  unit  as  follows  :  ' '  The  gold  coins  of  the 
United  States  shall  be  a  one  dollar  piece,  which,  at  the 
standard  weight  of  twenty-five  and  eight-tenth  grains 
shall  be  the  unit  of  value  ;  a  quarter  eagle,  or  two  and  a 
half  dollar  piece ;  a  three  dollar  piece  ;  a  half  eagle,  or 
five  dollar  piece  ;  an  eagle,  or  ten  dollar  piece ;  and  a 
double  eagle,  or  twenty  dollar  piece.     .     .     ."* 

Although  the  congress  declares  that  the  gold  dollar 
shall  be  the  unit  of  value,  unless  we  accept  the  dollar 
as  established  by  the  second  congress  of  the  United 
States,  the  term  dollar,  as  used  in  that  act  of  congress, 
must  be  entirely  without  meaning,  and  the  mention  of 
the  one  dollar  piece  ;  the  three  dollar  piece ;  the  five 
dollar  piece ;  the  ten  dollar  piece,  and  the  twenty  dollar 
piece,  would  all  be  so  much  jargon  and  entirely  without 
meaning. 

But  if  the  silver  dollar,  as  established  by  the  second 
congress,  be  recognized  as  the  unit  of  value  of  the  United 
States,  the  act  of  congress  quoted  from  becomes  perfectly 
plain  and  comprehensible. 

I  do  not  question  the  authority  of  the  congress  to 
change  the  unit  of  value,  and  to  establish  such  unit 
as  may  please  the  '  congress ;  but,  inasmuch  as  that 
unit  is  a  sign  by  which  to  express  value,  it  must  be 
understood  and  agreed  on  by  the  trading  people  of 
the  United  States,  and  should  bear  such  relation  to 
the   unit   of   values   agreed   on  by  the  commercial   na- 


*  Revised  Statutes  U.  S.  351 1. 


TO   LAY   AND   COLLECT   TAXES,    ETC.  1 49 

tions  with  which  the  American  people  earn--  on  trade,  as 
to  make  it  useful  to  the  people  ;  it  should  also  bear  re- 
lation to  the  value  of  the  commerce  it  is  to  be  used  to 
express  the  value  of,  otherwise  it  would  not  express  the 
true  value  thereof,  and  would  prove  a  serious  obstacle  in 
the  way  of  carrying  on  commerce  with  foreign  nations. 
Consequently,  unless  the  congress  shall  take  its  new 
unit  from  some  foreign  nation,  or  from  the  existing 
unit  of  the  United  States,  it  will  be  compelled  to 
look  to  the  commerce  of  the  world  and  the  nations 
with  which  the  people  of  the  United  States  trade,  and 
compare  it  with  the  money  of  those  nations,  or  rather 
the  facilities  of  those  nations  to  acquire  bullion,  of  which 
to  make  final  redemption  money,  to  ascertain  a  correct 
unit  by  which  to  express  values.  The  congress  without 
entering  into  this  investigation  attempted  to  make  the 
unit  of  value  of  gold,  as  aforesaid,  but,  in  fact,  retained 
the  unit  as  established  by  the  second  congress. 

The  second  congress  declared  that  the  money  of  ac- 
count shall  be  expressed  in  dollars  as  units ;  dimes, 
or  tenths  ;  cents,  or  hundredths  ;  mills,  or  thousandths, 
in  decimal  proportion  each  to  the  other.  That  all  gold 
coins  should  be  eleven  parts  pure  gold  and  one  part  of 
alloy,  consisting  of  copper  and  silver,  the  proportion  of 
silver  not  to  exceed  one-half  of  said  alloy.  And  the 
proportion  between  pure  gold  and  pure  silver  should  be 
fifteen  to  one  in  value.  And  the  dollar  of  the  United 
States  should  be  the  same  as  the  Spanish  milled  dollar, 
containing  37 1  %  grains  of  pure  silver,  making  the  stand- 
ard silver  in  it  416  grains.* 

It  wall  be  observed  that  the  second  congress  borrowed 
from  Spain  and  adopted  the  unit  of  that  nation,  viz.,  the 
dollar. 

*  30  L.  U.  S.  Second  Congress,  CC.  15-46. 


150  CONSTITUTION   OF   THE   UNITED   STATES. 

The  power  of  congress  to  coin  money  does  not  neces- 
sarily include   authority   to   make   the   coins   thereof   a 
tender  in  payment  of  debts,  as  is  manifested  from  the 
custom  in  Europe,  at  the  time  the  constitution  was  made, 
of  granting  that  authority  to  bishops  and  others,  which 
was  never  held  to  include  authority  to  make  the  coins 
a  legal  tender  ;  and  the  coining  of  the  precious  metals 
had   frequently   been  done   by  individuals  without   any 
grant  of  authority  to  do  so  by  any  government.     How- 
ever, authority   to   regulate   the  value   thereof,  and   of 
foreign  coin,  may  with  some  plausibility  be  claimed  to 
include  authority  to  make  the  coins  a  legal  tender  ;  but 
a  careful  examination  of  all  of  the  provisions  of  the  con- 
stitution   relating   to    the    subject   will    show   that    the 
authority  to  regulate  the  value  thereof  was  not  intended 
to  grant  power  to  make  the  coins  a  legal  tender,  and  can 
not  be  so  construed,   unless  we  concede  that  the  con- 
vention desired  to  vest  the  congress  with  authority  to 
give  to  the  coin  a  fiat  value,  as  the  power  to  make  them 
legal  tender  can  in  nowise  aid  in  regulating  their  value 
except  by  enabling  the  congress  to  force  the  people  to 
take  spurious  coin  in  payment   of  debts  ;  therefore  I  as- 
sume for  the  present,  but  will  present  the  proof  later, 
that  the  states  alone  are  vested  with  authority  to  make 
the  coins  of  gold  and  silver  tenders  in  payment  of  debts, 
and    the   only  power  the   congress  has  is   to   coin  and 
regulate  the  ratio  between  gold  and  silver  and  the  size  of 
the  coins.     Though  congress  may  coin  any  metal  to  be 
used  as  currency,  the  coins  thereof  can  not  be  made  legal 
tender  without  the  sanction   of  the  legislatures  of  the 
several  states  ;  and  the  states  are  prohibited  from  making 
any  thing  a  tender  in  payment  of  debts  except  gold  and 
silver  coin. 

The   whole   country'   was   disgusted   with    the    paper 
money,  whether  it  was  continental  money  or  that  which 


TO   LAY   AND    COLLECT   TAXES,    ETC.  151 

was  issued  by  the  respective  states,  and  the  delegates  in 
the  convention  were  impressed  with  the  importance  of 
establishing  a  stable  and  sound  monetary  system  for  the 
United  States.  But  how  to  vest  congress  with  power  to 
make  money  and  limit  the  exercise  of  that  power  so  as  to 
prevent  it  from  following  the  example  set  bj'  the  conti- 
nental and  confederate  congresses,  was  a  matter  of  serious 
concern  among  the  delegates. 

Therefore,  why  not  divide  the  power  to  make  money 
between  the  congress  and  the  states  ?  The  objects  of 
government  were  divided  between  the  states,  and  the 
United  States,  by  giving  the  union  exclusive  jurisdiction 
of  that  class  of  powers  necessary  to  enable  it  to  conduct 
the  affairs  thereof  with  foreign  nations  ;  and  to  the  several 
states  exclusive  jurisdiction  of  the  domestic  affairs  and 
police  powers  thereof,  and  no  amendment  to  the  federal 
constitution  could  be  made  without  the  concurrence  of  two- 
thirds  of  each  house  of  congress,  and  although  concurred 
in  by  so  large  a  vote  of  each  house,  such  amendments  could 
not  become  parts  of  the  constitution  until  ratified  by  the 
legislatures  of  three- fourths  of  the  states,  or  by  conven- 
tions in  three-fourths  of  the  states  ;  or  be  proposed  by  a 
federal  convention  and  ratified  by  three- fourths  of  the 
states. 

A  stable  and  high  grade  of  money  being  so  earnestly 
desired  by  the  convention,  why  should  the  monetar>'  sys- 
tem not  be  guarded  by  dividing  the  power  to  make 
money  between  the  states  and  congress? 

The  power  to  declare  what  shall  be  a  tender  in  pay- 
ment of  debts  can  not  be  practically  exercised  by  both 
the  congress  and  the  states.  For,  suppose  the  great 
state  of  New  York  should  declare  the  gold  and  silver 
coin  of  the  United  States  to  be  equally  legal  tender,  with- 
out regard  to  any  contract  against  the  silver  coin,  (which 
that  state  clearly  has  a  right  to  do,  by  the  plain  letter  of 


152  CONSTITUTION   OF   THE   UNITED   STATES. 

the  constitution),  any  judgment  ia  the  courts  of  that 
state  could  be  satisfied  by  the  payment  of  either  gold  or 
or  silver  coin.  But  either  party  would  have  a  right  to 
appeal  the  case  to  the  supreme  court  of  the  United 
States,  to  test  the  validity  of  the  act  of  congress,  in  at- 
tempting to  delegate  its  authority  of  deciding  when,  and 
in  what  character  of  cases,  silver  coin  should  be  legal 
tender.  If  discretionar>^  authority  to  declare  gold  and 
silver  coin  a  tender  in  payment  of  debts  is  vested  in  con- 
gress, the  congress  alone  must  exercise  that  power,  for 
congress  can  not  delegate  it  to  any  other  jurisdiction,  not 
even  to  the  people  themselves.* 

Should  the  supreme  court  hold  the  act  of  congress 
valid,  in  all  judgments  in  the  courts  of  that  state,  the 
New  York  law  would  be  sustained,  and  any  judgment  for 
money  could  be  satisfied  by  a  payment  in  either  gold  or 
silver  coin. 

But  in  actions  in  the  United  States  courts,  held  in  that 
state,  the  New  York  law  would  be  ignored  and  the  debt 
would  be  required  to  be  paid  in  gold. 

The  authority  to  make  gold  and  silver  coin  tenders  in 
payment  of  debts,  is  expressly  reserved  to  the  states  by 
the  plain  letter  of  the  constitution. 

"No  state  shall  .  .  .  coin  money,  emit  bills  of 
credit,  make  any  thing  but  gold  and  silver  coin  a  tender 
in  payment  of  debts. ' ' 

But  the  congress  is  authorized,  not  only  to  coin  money, 
but  to  regulate  the  value  thereof,  and  of  foreign  coin. 
Though  as  has  been  shown,  authority  to  coin  money  does 
not  include  authority  to  make  the  coins  a  legal  tender. 
Neither  does  authority  to  regulate  the  value  thereof  in- 
clude authority  to  make  the  coins  a  legal  tender. 

The  value  of  the  coins  of  every  nation  must  be  regu- 


*  Cooley's  Con.  Lim.,  Sixth  Edition,  p.  137. 


TO  LAY  AND  COLLECT  TAXES,  ETC.        1 53 

lated  by  law  ;  but  as  the  coins  of  every  nation  constitute 
the  money  with  which  the  national  debts  are  to  be  paid, 
they  ought  to  be  good  enough  to  pass  current  without  the 
fiat  of  being  made  a  legal  tender  by  the  nation.  Still,  a 
unit  of  value  by  which  all  values  may  be  expressed  is 
essentially  necessary  to  enable  the  people  to  sell  or  ex- 
change their  commodities,  and  every  coin,  whether  frac- 
tional parts  of  that  unit  or  multiples  thereof,  should  refer 
to  that  unit,  as  is  the  case  in  the  United  States.  The 
dollar  being  the  unit,  the  fractions  thereof  do  refer  to  it, 
as  half  dollars,  quarter  dollars,  etc.  So  do  the  multiples 
refer  to  that  unit,  as  the  five-dollar  gold  coin,  the  ten- 
dollar  gold  coin,  etc.  Again,  in  fixing  the  size  of  the 
fractional  parts  of  the  unit  and  multiples  thereof  and  the 
size  of  said  unit,  is  but  exercising  authority  "  to  regulate 
the  value  thereof;"  and  by  declaring  the  relation  of 
foreign  coins  to  that  unit,  is  a  regulation  of  the  value  of 
foreign  coins. 

As  authority  to  the  manufacturer  of  coins  to  make 
them  a  legal  tender  includes  authority  to  give  them  a  fiat 
value,  if  the  use  of  the  words,  "and  to  regulate  the 
value  thereof  and  of  foreign  coins"  means  to  vest  the 
congress  with  authority  to  make  them  a  legal  tender,  the 
convention  must  have  intended  to  give  the  congress  un- 
limited control  of  making  money,  and  authority  to  nullify 
that  provision  of  the  constitution  reserving  to  the  states 
authority  to  make  gold  and  silver  coins  a  tender  in  pay- 
ment of  debts  ;  for,  as  has  been  shown,  that  authority 
can  not  be  exercised  by  the  congress  and  the  states  both 
at  the  same  time. 

The  congress  having  exclusive  authority  to  manufact- 
ure the  coins  of  the  United  States  without  limitation, 
and  no  limitation  or  restriction  on  the  congress  relating 
to  making  legal-tender  money  appearing  any-where  in 
the  constitution,   what  will  prevent  the  congress  from 


154  CONSTITUTION   OF   THE   UNITED   STATES. 

splitting  the  coins  half  in  two  and  making  them  legal 
tenders,  and  thereby  reducing  the  public  debt  one-half 
and  relieving  the  debtor  class  of  one-half  the  diflBculties 
of  paying  their  obligations  ?  For  there  is  no  prohibition 
against  the  congress  passing  laws  that  will  impair  the  ob- 
ligation of  contracts.  Or  what  is  there  to  prevent  the 
congress  from  increasing  the  amount  of  metal  in  the 
coins,  and  thereby  doubling  the  obligations  of  the  debtor 
class  ?  Or  what  will  prevent  the  congress  from  declining 
to  manufacture  either  or  both  of  said  metals  into  money, 
and  making  the  promises  to  pay  of  the  United  States  a 
legal  tender,  as  was  done  with  the  treasury  notes,  com- 
monly known  as  greenbacks,  during  the  civil  war,  which 
were  paid  out  at  par  for  army  supplies,  while  they  were 
not  worth  more  than  from  thirty  to  fifty  cents  to  the  dol- 
lar, which  amounted  to  taking  private  property  without 
just  compensation  ? 

Some  of  the  ablest  statesmen  that  ever  lived  in  the 
United  States  were  in  the  convention  that  made  the  con- 
stitution, and  they  certainly  foresaw  all  of  these  dangers, 
and  knowing  that  the  continental  congress  and  the  con- 
gress of  the  confederation  had  each  shown  themselves  in- 
capable of  managing  so  delicate  a  trust,  they,  therefore, 
could  not  have  meant  to  vest  the  congress  with  such  plenary 
powers  by  the  use  of  the  language  ' '  to  regulate  the 
value ' '  of  the  coins. 

As  the  states  and  the  congress  can  not  both  exercise  the 
power  to  declare  the  coins  of  gold  and  silver  tenders  in  pay- 
ment of  debts,  the  express  reservation  of  that  authority  to 
the  states  was  intended,  in  part,  as  a  limitation  on  the  pow- 
ers of  the  congress  ;  but  mainly  for  the  purpose  of  guaran- 
teeing to  the  people  of  the  United  States  a  specie,  to  con- 
sist of  gold  and  silver  coins  alone,  of  full  weight  of  pure 
metal,  and  the  coins  of  each  metal  to  be  of  equal  value, 
and  to  constitute  but  one  grade  of  money.     The  congress 


TO    LAY    AND    COLLECT    TAXES,  ETC.  I 55 

having  exclusive  authority  to  coin  money,  and  the  states 
exclusive  authority  to  determine  whether  they  shall 
constitute  tenders  in  payment  of  debts,  and  the  states 
being  prohibited  from  making  any  law  that  will  impair 
the  obligation  of  contracts,  no  changes  that  will  impair 
the  obligation  of  contracts  could  be  made  in  the  coins  of 
the  United  States.  Under  this  view,  the  congress  would 
not  be  Hkely  to  attempt  to  make  any  such  changes  in  the 
coins,  particularly  as  they  would  become  a  dead  expense 
on  the  United  States;  unless  the  states  could  accept 
them  and  make  them  tenders  in  payment  of  debts,  which 
the  states  could  not  do,  if  they  were  changed  sufl&ciently 
to  impair  the  obligation  of  contracts. 

As  the  states  would  not  be  likely  to  agree  on  coins,  un- 
less they  were  of  full  weight  of  pure  metal  (and  no  one 
state  could  afford  to  accept  coins  as  tenders  in  payment 
of  debts  that  were  refused  by  the  other  states) ,  and  the 
states  being  prohibited  from  passing  laws  that  will  impair 
the  obligation  of  contracts,  not  only  a  high  grade,  but 
the  most  stable  monetary  system  of  any  nation,  was  se- 
cured by  the  constitution. 

The  specie  must  consist  of  both  gold  and  silver  coins, 
the  silver  for  small  and  gold  for  large  transactions ; 
the  gold  can  not  be  used  for  subsidiary  coin,  for  but 
few  persons  could  see  or  feel  a  five  cent  gold  piece, 
particularly  those  who  labor.  The  gold  dollar  can  not  be 
easily  handled  by  but  few  persons  ;  and  coins  smaller 
than  a  dollar  are  absolutely  needed  to  get  the  daily 
necessities  of  living  ;  therefore,  the  silver  is  absolutely 
necessary-  for  one  class  of  business,  and  the  gold 
is  necessary  for  another  and  different  class  of  busi- 
ness. 

The  value  of  the  coins  of  each  metal  ought  to  be  equal, 
and  to  pass  current  at  their  stamp  value  in  the  payment  of 


156  CONSTITUTION   OF   THE   UNITKD   STATKS. 

debts,  and  in  exchange  for  all  commodities  on  exact 
equality. 

There  is,  however,  a  strong  party  in  the  United 
States  that  advocates  what  they  call  ' '  the  single  gold 
standard."  A  single  gold  standard  is  an  utter  im- 
possibility ;  no  nation  ever  had,  and  no  nation  can, 
confine  itself  to  a  single  gold  standard  of  values,  because 
gold  can  not  be  used  for  making  subsidiary  coins  of ; 
therefore  some  other  metal  must  be  used  for  that  pur- 
pose. As  the  subsidiary  coins  are  used  to  provide 
the  daily  necessities  of  life,  the  people  are  made  more 
familiar  with  them,  and  their  value  ;  they  will,  there- 
fore, measure  the  values  of  all  things  by  the  unit  of 
that  coin,  and  every  wise  government  will  give  to  its 
subsidiary  coin  a  fixed  value,  by  prescribing  its  unit  of 
values  in  the  metal  of  which  its  small  coins  are  made, 
for  all  values  are  relative  and  fluctuate ;  even  the 
precious  metals  fluctuate  in  value,  and,  as  before  shown, 
the  coin,  or  specie,  fluctuates  in  value,  in  obedience  to 
the  supply  and  demand.  Whenever  a  nation  uses  the 
more  precious  metal  to  prescribe  its  unit  of  values  in, 
that  act  of  itself  decries  the  value  of  the  less  precious 
money  metal ;  for  no  nation  can  get  its  citizens  to 
consider  what  is  called  a  gold  standard  of  values  unless 
it  decries  the  coins  made  of  its  less  precious  metal ; 
and  as  the  people  can  not  surrender  the  subsidiary 
coin,  to  express  the  value  of  the  things  they  are  bound 
to  buy  for  their  daily  living,  the  gold  standard  neces- 
sarily results  in  another  standard,  without  destroying 
the  unit  recognized  in  the  subsidiary  coin,  consequently 
that  attempt  must  result  in  establishing  two  standards, 
which  two  standards  will  fluctuate  in  value  according  to 
the  supply  and  demand  of  the  coins  of  each  metal. 

A  discussion  of  the  evils  of  two  grades,  or  standards. 


TO   LAY   AND   COLLECT   TAXES,    ETC.  1 57 

of  money,  more  properly  belongs  to  economics  than 
to  the  powers  granted  by  the  constitution.  However,  it 
may  not  be  out  of  place,  to  call  attention  to  the  fact 
that  just  at  this  time  bonds  made  payable  in  gold  sell 
more  readily  than  bonds  made  payable  in  American 
coin ;  it  should  be  borne  in  mind  that,  if  the  con- 
gress is  authorized  to  declare  what  shall  be  a  tender  in 
payment  of  debts,  there  is  no  limit  on  that  power,  and 
the  congress  may  make  a  bond  contracted  to  be  paid  in 
gold  payable  in  paper  alone,  but  if  authority  to  declare 
what  shall  be  a  tender  in  payment  of  debts  is  vested 
exclusively  in  the  states,  they  can  never  make  any 
thing  a  tender  in  payment  of  such  bonds  except  gold 
and  silver  coins ;  but  the  states  must  make  the  gold 
and  silver  coins  equally  tenders  in  payment  of  debts. 
Attention  should  be  directed  to  the  further  fact,  that, 
as  long  as  this  country  attempts  to  maintain  two  or 
more  grades  of  legal-tender  money,  American  exchange 
will  necessarily  take  rank  with  the  lowest  grade  of  legal- 
tender  money,  because  of  the  natural  inclination  of  man- 
kind to  pay  debts  in  the  cheapest  money  authorized  by 
law.  It  should  also  be  mentioned  that,  as  long  as  this 
country  attempts  to  maintain  two  or  more  grades  of 
legal- tender  money,  it  will  be  inpossible  to  maintain  a 
merchant  marine,  because  there  will  be  no  money  with 
which  to  pay  the  sailors,  to  make  their  wages,  on  Amer- 
ican ships,  equal  to  the  wages  they  get  on  ships  conducted 
under  foreign  flags.  It  is  against  human  nature  to  pay 
a  debt  in  the  highest  grade  of  money  that  the  law  author- 
izes to  be  paid  in  the  lowest  grade  ;  but  if  ship  owners 
could  be  found  who  would  pay  their  sailors  in  the  high- 
est grade  of  money,  the  smallest  piece  of  gold  money 
men  accustomed  to  climb  ropes  can  conveniently  han- 
dle is  the  two  and  a  half  dollar  gold  piece,  American 


158  CONSTITUTION   OF   THK   UNITKD   STATES. 

ship  owners  are  obliged  to  follow  the  custom  of  letting  a. 
part  of  the  crew  off  of  duty  in  each  port  they  may  en- 
ter, and  whenever  sailors  go  ashore  they  want  to  spend 
money,  so  that,  unless  they  buy  two  and  a  half  dollars' 
worth,  they  will  be  compelled  to  take  the  subsidiary  coin 
of  the  port  in  change,  which  is  not  likely  to  be  worth  its 
coin,  or  stamp,  value  in  any  other  port ;  therefore  the 
sailors  will  be  losers  whether  they  are  paid  in  gold  or 
silver  coin  of  the  United  States.  Hence,  although  the 
merchant  ships  may  offer  and  agree  to  pay  their  sailors 
as  much  as  they  are  to  get  on  ships  of  other  countries, 
the  character  of  the  money  they  are  to  be  paid  in  reduces 
their  wages  below  the  wages  paid  on  foreign  ships. 

In  support  of  this  theory,  at  the  beginning  of  the  late 
civil  war  the  merchant  marine  of  the  United  States  was 
second  only  to  that  of  England,  and  now  it  is  inferior  to 
that  of  five  or  six  nations,  although  it  is  claimed  that  the 
United  States  furnishes  about  one-fourth  of  the  commerce 
of  the  world. 

It  is  also  claimed  that  the  United  States  is  more  richly 
endowed  with  silver  deposits  than  any  other  nation  in. 
the  world. 

The  demonetization  of  silver  and  destroying  its  equal 
legal- tender  value  with  gold  not  only  destroys  the  immense 
wealth  this  country  ought  to  derive  from  carrying  the 
commerce  of  the  United  States,  but  destroys  one-half  of 
the  value  of  the  silver  ores  so  bountifully  deposited  in 
the  mountains  of  this  country. 

The  destruction  of  these  two  valuable  sources  of  wealth 
without  cause,  or  at  least  without  a  reasonable  cause,  con- 
clusively shows  the  inability  of  the  congress  to  manage  so 
delicate  and  important  an  interest  as  that  of  regulating  the 
money  of  the  United  States,  and  the  wisdom  of  the  consti- 
tution makers  in  dividing  the  authority  to  make  final 


TO   LAY   AND    COLLECT   TAXES,    ETC.  1 59 

redemption  money  between  the   congress  and   the  state 
legislatures. 

The  claim  that  the  United  States  can  not  maintain  its 
silver  coins  on  a  par  with  its  gold  coins  is  without 
foundation  or  common  reason ;  for  that  which  gives 
specie  its  money  value  is  the  uses  it  may  be  put  to,, 
and  if  it  is  true  that  the  United  States  furnishes  one- 
fourth  of  the  commerce  of  the  world,  by  giving  her 
coins  of  each  metal  equal  sanction  under  the  law,  all 
coins  so  sanctioned  could  be  maintained  at  par,  and  be 
gladly  received  in  every  country  using  articles  exported 
from  the  United  States. 

Article  I. 

Sec.  8,  Par.  3.  "To  regulate  commerce  with  foreign 
nations,  and  among  the  several  states,  and  with  the  In- 
dian tribes." 

Sec.  9,  Par.  6.  "No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one 
state  over  those  of  another  ;      .     .     . " 

Article  IV. 

Sec.  2,  Par.  i.  "  The  citizens  of  each  state  shall  be  en- 
titled to  all  the  privileges  and  immunities  of  citizens  in 
the  several  states." 

Par.  2.  "A  person  charged  in  any  state  with  treason, 
felony  or  other  crime,  who  shall  flee  from  justice  and  be 
found  in  another  state,  shall  on  demand  of  the  executive 
authority  of  the  state  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  state  having  jurisdiction  of  the 
crime." 


l6o  CONSTITUTION   OF   THE   UNITED   STATES. 

These  four  provisions  relate  to  the  subject  of  com- 
merce among  the  states  and  should  be  considered  to- 
gether, to  reach  a  clear  understanding  of  the  extent  of 
the  power  of  congress  on  the  subject. 

"Among  the  states"  was  held  by  the  supreme  court  of 
the  United  States,  in  the  Gibbon-Ogden  case,*  to  mean, 
' '  within  the  states  ; ' '  indeed  it  is  difficult  to  see  how  it 
can  be  construed  otherwise.  That  was  a  case  involving 
the  vahdity  of  an  act  of  the  legislature  of  the  state  of 
New  York,  granting  to  two  persons  exclusive  authority 
to  navigate  all  the  waters  in  that  state,  that  were  navi- 
gable by  steam,  for  the  period  of  ten  years.  This  act  of 
the  New  York  legislature  was  clearly  against  the  act  of 
congress  regulating  domestic  na^dgation,  and  therefore 
unconstitutional,  and  the  decision  was  right,  but  it  was 
not  based  on  that  ground. 

While  som-e  of  the  navigable  waters,  by  steam,  of  that 
state  may  have  extended  into  other  states,  that  feature 
was  not  discussed  by  the  court  in  its  opinion  in  the  case, 
but  the  court  held  that  the  navigable  waters  by  steam  of 
that  state,  constituted  channels  of  commerce,  and  not- 
withstanding the  fact  that  some  of  the  waters  included 
in  the  grant  were  navigable  by  steam  only  within  the 
state  of  New  York,  and  the  commerce  to  be  carried  on 
them  must  be  taken  on,  and  discharged,  within  the  state  ; 
still  the  court  construing  the  phraseology  "among  the 
states,"  to  mean  "within  the  state,"  held  that  as  the 
navigable  waters  by  steam,  although  entirely  within  the 
state  of  New  York,  constituted  channels  of  commerce 
over  which  congress  had  control,  and  that  the  act  of  the 
New  York  legislature  could  not  defeat  the  congress  in 
its  authority  to  regulate  commerce,  therefore  the  act  of 

*  Reported  in  9th  Wheaton,  p.  i. 


TO   LAY   AND   COLLECT   TAXES,    ETC.  l6l 

the  state  legislature  was  void.  This  is  held  to  be  a 
leading  case  on  the  subject,  and  it  has  been  uniformly 
adhered  to,  to  the  extent  that  congress  has  jurisdiction 
of  commerce  between  the  states,  and  over  the  means  of 
carrying  commerce.  So  that  a  discussion  of  these  ques- 
tions will  cover  all  that  has  been  decided  on  the  subject 
by  the  supreme  court. 

While  I  concur  with  that  part  of  the  decision  that 
interprets  the  phrase  ' '  among  the  states ' '  to  mean 
"within  the  states,"  I  can  not  understand  how  the 
court  could  construe  "  among  the  states  "  also,  to  mean, 
"between  the  states;"  nor  can  I  concur  with  the 
court  in  holding  that  authority  to  regulate  commerce 
includes  authority  to  regulate  the  means  of  carrying 
commerce. 

I  will  discuss  these  questions  in  the  order  they  are  here 
named. 

In  arguing  the  case,  the  court  refers  to  no  authorities 
(probably  because  the  counsel  cited  none) ,  but  among  other 
things,  that  court  said  :  "The  subject  to  be  regulated  is 
commerce,  and  our  constitution  being,  as  was  aptly  said 
at  the  bar,  one  of  enumeration,  and  not  of  definition,  to 
ascertain  the  extent  of  the  power,  it  becomes  necessary' 
to  settle  the  meaning  of  the  word. 

"The  counsel  for  appellee  would  limit  it  to  traffic,  to 
buying  and  selling,  of  the  interchange  of  commodities, 
and  do  not  admit  that  it  comprehends  navigation. 

' '  This  would  restrict  a  general  term  applicable  to 
many  objects,  to  one  of  its  significations. 

"  Commerce  undoubtedly  is  traffic,  but  it  is  something 
more  ;  it  is  intercourse.  It  describes  the  commercial  in- 
tercourse between  nations,  and  ports  of  nations  in  all  of 
its  branches,  and  is  regulated  by  prescribing  rules  for 
carrying  on  that  intercourse. 

' '  The  mind  can  scarcely  conceive  a  system  for  regulating 


l62  CONSTITUTION   OF   THE   UNITED   STATES. 

commerce  between  nations,  which  shall  exclude  all  laws 
concerning  navigation,  which  shall  be  silent  on  the  ad- 
mission of  the  vessels  of  the  one  nation  into  the  ports  of 
the  others,  and  be  confined  to  prescribing  rules  for  the 
conduct  of  individuals  in  the  actual  employment  of  buy- 
ing and  selling,  or  of  barter. 

"All  America  understood  the  word  commerce  to  com- 
prehend navigation.  It  was  so  understood,  and  must 
have  been  so  understood  when  the  constitution  was 
framed." 

It  is  not  the  word  commerce  that  is  to  be  interpreted, 
to  fully  understand  the  extent  of  the  powers  of  congress 
over  commerce  in  the  states  ;  what  the  phrase  ^^ among  the 
states ' '  means  is  of  the  highest  importance,  for  it  is  upon 
that  phrase  that  the  whole  question  turns.  If  that  shall 
be  interpreted  as  the  makers  of  the  constitution  evidently 
intended  it  to  be  understood  and  interpreted,  the  con- 
gress has  no  power  over  commerce  between  the  states. 
Commerce  and  intercourse  between  the  states  is  unaltera- 
bly provided  for  by  the  constitution  itself  as  the  very  es- 
sence of  the  compact  of  the  union.  It  is  provided  that 
"  the  citizens  of  each  state  shall  be  entitled  to  all  of  the 
privileges  and  immunities  of  citizens  in  the  several  states. ' ' 
Privileges  and  immunities,  as  has  been  said,  include  the 
right  of  going  into  any  state  in  the  union  and  buying,  own- 
ing, selling  and  conveying  any  thing  therein  that  is  recog- 
nized as  property  in  the  state  ;  to  transmit  the  same  by  will, 
deed,  or  descent  and  distribution,  according  to  the  laws 
of  the  state  ;  to  attend  all  lawful  meetings  and  to  freely 
enter  into  any  discussion  on  any  lawful  subject,  whether 
it  relates  to  religion,  politics  or  science,  or  any  law  of 
physics  or  morals ;  to  import,  export,  raise  or  manufac- 
ture any  article  of  trade,  and  to  use  every  railroad,  canal, 
river,  turnpike,  plank-road,  dirt-road,  or  bridle-path  over 
the   mountains,  on    the   same  terms  and  conditions  the 


TO   LAY   AND   COIXKCT   TAXES,    ETC.  1 63 

citizens  thereof  are  subjected  to,  no  more  and  no  less. 
It  is  impossible  to  prescribe  any  rules  for  the  reg- 
ulation of  commerce  between  the  states,  without  in 
some  way  interfering  with  these  provisions  of  the  con- 
stitution. 

Congress  never  passed  any  act  to  regulate  commerce 
between  the  states,  except  between  rebelling  states  or 
parts  thereof,  and  states  adhering  to  the  union  during 
the  late  civil  war,  and  to  regulate  steamboats  navigating 
rivers  that  pass  along  or  through  several  states  ;  indeed, 
it  is  utterly  impossible  to  pass  an  act  to  regulate  trade 
between  the  citizens  of  the  several  states,  without  its  re- 
straining the  states  from  extending  equal  privileges  and 
immunities  to  the  citizens  of  all  the  states  ;  or  to  pass 
an  act  regulating  the  carrying  of  commerce  on  rail- 
roads, canals,  turnpikes,  plank-roads,  dirt-roads  or 
mountain  paths,  without  interfering  with  the  ability 
of  the  states  to  extend  to  the  citizens  of  all  of  the  states 
equal  privileges  and  immunities.  The  extending  equal 
privileges  and  immunities  to  the  citizens  of  all  the  states 
by  every  state  ;  the  giving  full  faith  and  credit  to  the 
public  acts,  records,  and  judicial  proceedings  of  each 
state  in  every  other  state  ;  the  capturing  of  one  guilty  of 
crime  committed  in  a  state,  who  flees  to  another  state,  by 
the  authorities  of  the  state  where  he  may  be  found,  to  be 
taken  to  the  state  having  jurisdiction  of  the  act  to  be 
tried  ;  and  the  feeHng  of  security  established  by  uniting 
the  forces  of  all  of  the  states  to  make  common  defense, 
constitutes  the  cohesive  principles  of  the  union,  and  with- 
out any  one  of  these  provisions  the  cohesion  of  the 
union  would  be  greatly  weakened,  and  without  any  of 
them  the  states,  having  no  common  interest,  would  likely 
drift  apart  and  let  the  union  go  to  pieces. 

As  these  provisions  are  necessary  to  hold  the  union  to- 


164  CONSTITUTION   OF   THE   UNITED   STATES. 

gether,  any  interference  that  tends  to  destroy  or  weaken 
them,  or  either  of  them,  must  constitute  acts  hostile  to 
the  union,  let  it  come  from  whatever  source  it  may. 

The  authority  to  regulate  steamboats  on  navigable 
waters  arises  out  of  an  entirely  different  class  of  powers ; 
navigable  rivers  are  public  highways,  and  it  is  the  duty 
of  the  congress  to  keep  them  open  for  the  use  of  all  of  the 
states,  and  by  the  terms  of  the  cession  of  the  surplus 
territory  by  the  several  states  it  was  made  the  duty  of 
congress  to  keep  the  Ohio  and  St.  I^awrence  rivers  and 
their  tributaries  open  for  the  use  of  all  of  the  states. 
In  addition  to  this  source  of  authority,  the  congress  is 
authorized  to  regulate  domestic  navigation  among  and 
between  the  states. 

The  federal  judiciary  has  assumed  jurisdiction  of  not 
only  commerce  between  the  states,  but  to  regulate  the 
means  constructed  by  the  several  states  for  carrying 
commerce  out  of  their  borders  to  a  seaboard  town  situate 
in  another  state,  for  exportation  ;  but  the  courts  have 
not  as  yet  succeeded  in  arriving  at  an  exact  and  uniform 
rule  for  regulating  the  same,  and  it  is  doubtful  whether 
an  exact  and  uniform  rule  can  be  discovered  to  regulate 
the  means  of  carrying  commerce  between  states  without 
coming  in  collision  with  the  fouith  article  of  the  con- 
stitution, and  the  right  of  the  states  to  manage  their 
police  affairs. 

At  the  time  the  constitution  was  being  made  the  insti- 
tution of  slavery  was  a  question  of  serious  concern  with 
the  delegates  in  the  convention  ;  and  to  interpret  the 
language  ' '  among  the  several  states ' '  to  mean  ' '  between 
the  several  states,"  would  have  necessarily  authorized 
congress  to  regulate  commerce  in  slave  property  between 
the  states,  and  carrying  slaves  from  one  state  to  another, 


TO   LAY   AND   COLLECT   TAXES,    ETC.  1 65 

and  have  destroyed  the  right  of  any  state  to  regulate  that 
institution  -^dthin  its  borders. 

The  regulation  of  the  liquor  trade  between  states,  and 
the  carrying  of  the  same  from  one  state  to  another,  must 
also  be  within  the  jurisdiction  of  congress,  if  the  term 
"among  the  several  states"  be  construed  to  mean 
"  between  the  states." 

If  the  reader  will  call  to  mind  the  facts  that  the  United 
States  had  no  citizens  except  the  citizens  of  the  several 
states,  and,  unless  congress  could  bind  the  citizens  of 
the  several  states  to  its  commercial  treaties  with  foreign 
nations,  no  foreign  nation  would  make  such  a  treaty  with 
the  congress  of  the  United  States.  That  there  is  no  au- 
thority given  to  congress  to  bind  the  people  of  the  re- 
spective states  to  commercial  treaties  by  the  letter  of  the 
constitution,  unless  this  paragraph  authorizing  congress  to 
regulate  commerce  with  foreign  nations  and  among  the 
several  states,  and  with  the  Indian  tribes,  gives  that  au- 
thority. 

That  the  word  among  does  not  mean  between,  though 
by  adding  qualifying  words,  it  may  be  made  to  mean  be- 
tween, as  in  the  case  of  a  devise  directing  decedent's 
estate  to  be  equally  divided  among  his  children  ;  but 
there  are  no  qualifying  words,  or  word,  in  connection 
with  its  use  in  this  paragraph,  to  give  it  any  other  than 
its  own  meaning  (viz.),  "amidst,  within." 

And  that  the  imperative  necessity  of  authorizing  con- 
gress to  bind  the  people  of  the  several  states  to  its  regu- 
lation of  commerce  with  foreign  nations  and  with  the  In- 
dian tribes,  together  with  the  absolute  certainty  that  it 
was  never  intended  to  vest  congress  -unth  authority  to 
regulate  the  sale  of  slaves  by  citizens  of  one  state  to 
citizens  of  another  state,  or  the  transfer  of  slaves  from 
one  state  to  another  ;  conclusively  shows  that  the  sole 
object  and  function  of  the  power  of  congress  to  regulate 


1 66  CONSTITUTION    OF   THE    UNITED   STATES. 

commerce  among  the  several  states  was  intended  to  give, 
and  does  give,  the  regulation  of  foreign  commerce  by  the 
congress  force  and  effect  within  the  states,  and  was  never 
intended  to,  and  does  not,  give  congress  any  authority  to 
regulate  commerce,  or  the  means  of  carrying  the  same, 
between  the  states. 

However,  should  the  congress  find  some  mode  by  which 
it  may  regulate  commerce  between  the  states  without  con- 
flicting with  the  second  section  of  article  four  of  the 
constitution,  still  it  has  no  constitutional  authority  to  in- 
terfere with  the  means  of  carrying  commerce.  It  is  true, 
without  the  means  of  transportation,  commerce  could 
not  be  carried  on.  Nor  could  it  be  carried  on  without 
the  factories  and  farms  to  produce  it,  and  it  may  as 
reasonably  be  claimed  that  authority  to  regulate  com- 
merce includes  authority  to  regulate  the  factories  and 
farms,  as  to  claim  that  it  includes  the  tramway  from  a 
factory  to  a  railroad  depot,  or  a  turnpike,  railroad,  canal 
or  any  other  means  constructed  by  any  state  for  carrying 
commerce. 

Commerce  proper,  at  the  time  the  constitution  was 
formed  and  adopted  in  1787,  was  regulated  by  the  law 
vierchant,  a  species  of  international  law  which  was  be- 
yond the  control  of  the  municipal  authority,  and  it  could 
not  be  changed  by  any  one  nation  alone,  however  anxious 
it  might  be  to  do  so.  The  high  seas  being  free  to  all, 
the  navigation  thereof  was  to  a  limited  extent  also  regu- 
lated by  international  laws,  though  the  main  features  of 
navigation  were  subject  to  the  control  of  municipal  laws. 
Ships  engaged  in  the  carrying  of  commerce,  whether  on 
the  high  seas  or  on  inland  waters,  were  regulated  by  the 
municipal  law  of  the  nations  to  which  they  belonged  ; 
neither  ships,  canals,  inland  rivers,  nor  roads  as  means  of 
carrying   commerce,    were   ever   regulated   by   the    law 


TO   LAY   AND   COLLECT   TAXES,    ETC.  1 67 

merchant,  but,  on  the  contrary,  they  were  always  con- 
trolled by  municipal  authority. 

Since  commerce  and  navigation  were  regulated  not  only 
by  dififerent  codes  of  laws,  but  by  different  authorities, 
they  could  not  be  considered  as  parts  of  each  other. 

Mr.  Blackstone,  in  speaking  of  commerce,  says:  "No 
municipal  laws  can  be  sufficient  to  order  and  determine 
the  very  extensive  and  complicated  affairs  of  traffic  and 
merchandise  ;  neither  can  they  have  a  proper  authority 
for  this  purpose.  For  as  these  are  transactions  carried  on 
between  subjects  of  independent  states,  the  municipal 
laws  of  one  will  not  be  regarded  by  the  other.  For 
w^hich  reason  the  affairs  of  commerce  are  regulated  by  a 
law  of  their  own,  called  the  law  merchant,  or  lex  mercato- 
ria,  which  all  nations  agree  in,  and  take  notice  of."  * 

This  is  accepted  by  Mr.  Jacob  and  quoted  at  length  in 
his  law  dictionary,  f 

Every  civilized  nation  must  have  a  commerce,  for  the 
value  of  personal  property  depends  on  the  right  to  dis- 
pose of  it,  and  every  industry  requires  the  individual 
right  to  dispose  of  surplus  production  ;  without  this  right 
no  one  would  produce.  As  nations  occupy  different  de- 
grees of  latitude  and  produce  different  articles  of  com- 
merce, the  citizens  of  each  must  be  enabled  to  exchange  the 
surplus  they  produce,  or  they  will  seek  some  nation  to  live 
in  that  will  proxdde  them  with  that  convenience  ;  hence, 
a  well-regulated  commerce  is  essential  to  every  nation. 

But  while  every  nation  is  bound  to  have  a  commerce, 
and  internal  convenience  to  get  that  commerce  to  its 
ports  of  entry  for  exchange,  yet  ever}'  nation  is  not 
bound  to  have  ships,  for  the  ships  of  one  may  carry  the 
commerce   of   many  nations.     Every  ship    requires    the 


*  Blackstone,  vol.  i,  p.  273,  sec.  5. 

t  Jacob's  Law  Diet.,  Commerce,  Ships,  etc. 


1 68  CONSTITUTION    OF   THE   UNITED    STATES. 

protection  of  some  nation,  not  only  against  free-booters, 
and  pirates  at  sea,  but  to  protect  them  in  their  rights  in 
the  ports  of  foreign  nations  ;  for  this  reason  merchant 
ships  usually  take  their  charter  from  a  nation  able  to  give 
them  that  protection,  and  they  will  float  and  do  business 
under  the  flag  of  that  nation  ;  and  for  the  protection  it 
gets,  it  will  owe  allegiance  to  that  nation,  and  will  be 
subject  to  its  control,  and  may  be  called  on  in  time  of 
war  to  do  military  duty. 

The  relation  between  a  nation,  and  the  ships  that  be- 
long to  it  (which  includes  all  ships  that  float  under  its 
flag),  is  such  that  the  ship  is  deemed  a  part  of  the  terri- 
tory of  the  nation  whose  flag  it  floats,  and  this  theory  is 
carried  so  far  as  to  hold  infants  born  on  board  of  a  ship 
to  have  been  born  within  the  nation  to  which  the  ship 
belongs  ;  however,  if  the  birth  does  not  take  place  until 
the  ship  reaches  the  home  port  of  the  mother,  the  child 
will  be  deemed  to  have  been  born  within  the  nation  of 
which  its  mother  is  a  citizen.  * 

Although  the  navigation  of  the  high  seas  is  regulated 
by  international  laws,  every  ship  will  be  under  the  con- 
trol of  the  nation  to  which  it  belongs,  and  regulated  by 
the  municipal  laws  thereof,  still,  whenever  it  enters  the 
port  of  any  other  nation,  it  must  yield  submission  to  its 
municipal  regulations.  But  as  soon  as  it  leaves  that 
port  and  straightens  out  in  the  high  seas,  the  municipal 
authority  of  its  own  nation  envelops  it,  and  proceeds 
to  control  and  regulate  its  business  as  a  carrier  of  com- 
merce, as  far  as  it  can  do  so  without  interfering  with 
international  law. 

Long  before  the  separation  of  the  American  states 
from  England,  that  nation  had  its  navigation  laws.f     All 

*  Vattell's  Law  of  Nations,  book  i,  chap.  19,  sec.  216. 
t  Jacob's  L,aw  Diet.,  Navigation. 


TO   I.AY   AND   COLLECT   TAXES,    ETC.  1 69 

questions  of  navigation  were  settled  according  to  these 
laws,  instead  of  international  law,  by  the  English  courts. 
Still  commerce  proper  was  regulated  b}'  the  law  mer- 
chant, and  all  judicial  controversies  were  determined  and 
settled  by  the  rules  of  the  law  merchant,  "which  all  na- 
tions agree  in,  and  take  notice  of;"  as  said  by  Mr. 
Blackstone. 

If  authority  to  regulate  commerce  among  the  states  in- 
cludes authority  to  regulate  the  means  of  carrying  com- 
merce, it  must  include  ever>^  means  of  transportation, 
and  must  take  into  its  grasp  not  only  the  rivers  that  lie 
entirely  within  a  single  state,  but  the  canals,  railroads, 
turnpikes  and  all  dirt  roads  within  the  state.  Though 
the  supreme  court  has  never  gone  so  far  in  any  case  that 
I  am  aware  of  ;  however,  no  distinction  can  be  drawn  in 
principle  between  a  river  lying  entirely  within  a  state 
and  a  mountain  path  lying  entirely  within  a  state  ;  con- 
sequently, the  position  taken  by  the  judiciary  will  neces- 
sarily lead  to  transferring  the  control  of  every  public 
thoroughfare  in  every  state  of  the  Union  to  the  congress 
of  the  United  States,  although  there  is  no  authority  in 
the  congress  to  tax  the  people  of  one  state  to  construct 
railroads,  canals,  turnpike  or  dirt  roads  in  any  other 
state,  or  to  tax  any  other  state  to  construct  any  of  said 
improvements  therein,  or  to  compel  any  state  to  construct 
them. 

It  is  conceded  by  all  that  any  state  may  construct 
canals,  railroads,  turnpikes,  dirt  roads  and  bridges 
within  its  territorial  borders  without  let  or  hindrance 
by  congress  ;  but  if  congress  is  authorized  to  regulate 
such  improvements  because  they  may  be  designed  to  be 
used  as  channels  of  commerce,  the  congress  may  pre- 
vent any  state  from  constructing  any  such  improve- 
ments at  any  time  ;  yet  the  congress  has  no  authority  to 
compel   any   state   to   construct    improvements  of    any 


lyo  CONSTITUTION   OF   THE!  UNITED   STATES. 

character  whatever  and  has  no  authority  to  spend  the 
money  belonging  to  the  United  States  for  any  such  pur- 
pose, except  in  the  construction  of  post-roads  which  have 
no  connection  with  the  convenience  of  travel  or  hauling 
commerce  for  the  people. 

The  supreme  court  further  said  in  said  Gibbon-Ogden 
case  : 

"As  preliminary  to  the  very  able  discussion  of  the 
constitution  which  we  have  heard  from  the  bar,  and  as 
having  some  influence  on  its  construction,  reference  has 
been  made  to  the  political  situation  of  these  states 
anterior  to  the  formation  of  the  constitution. 

"  It  has  been  said  that  they  were  sovereign,  were  com- 
pletely independent  and  were  connected  with  each  other 
by  a  league. 

' '  This  is  true.  But  when  those  allied  sovereigns  con- 
verted their  league  into  a  government,  when  they  con- 
verted their  congress  of  ambassadors,  deputed  to  deliberate 
on  their  common  concerns,  and  to  recommend  measures 
of  general  utility,  into  a  legislature,  empowered  to  enact 
laws  on  the  most  interesting  subjects,  the  whole  charac- 
ter in  which  the  states  appear  underwent  a  change,  the 
extent  of  which  must  be  determined  by  a  fair  considera- 
tion of  the  instrument  by  which  that  change  was  effected. 

' '  This  instrument  contains  an  enumeration  of  powers 
expressly  granted  by  the  people  to  their  government. 
It  has  been  said  that  these  powers  ought  to  be  construed 
strictly. 

' '  But  why  ought  they  to  be  so  construed  ?  Is  there  one 
sentence  in  the  constitution  which  gives  countenance  to 
this  rule?  In  the  last  of  the  enumerated  powers,  that 
which  grants  expressly  the  means  for  carrying  all  others 
into  execution,  congress  is  authorized  to  make  all  laws 
which  shall  be  necessary  and  proper  for  the  purpose. 
But  this  limitation  on  the  means  which  may  be  used,  is 


TO   LAY   AND   COLLECT   TAXES,    ETC.  171 

not  extended  to  the  powers  which  are  conferred  ;  nor  is 
there  one  sentence  in  the  constitution  which  has  been 
pointed  out  by  the  gentlemen  of  the  bar,  or  which  we 
have  been  able  to  discover  that  prescribes  this  rule.  We 
do  not,  therefore,  think  ourselves  justified  in  adopt- 
ing it." 

The  tenth  amendment  to  the  constitution,  which  was 
proposed  by  the  first  congress  that  was  elected  after  the 
adoption  of  the  constitution,  provides  as  follows ; 

' '  The  powers  not  delegated  to  the  United  States,  by 
the  constitution,  nor  prohibited  by  it  to  the  states,  are 
reserv^ed  to  the  states  respectively,  or  to  the  people." 

The  constitution  being  inanimate,  it  can  speak  only  by 
its  letter.  Therefore  all  powers  not  delegated  by  the 
letter  of  the  constitution  to  the  United  States,  or  pro- 
hibited by  the  letter  thereof,  to  the  states,  are  expressly 
reserv^ed  to  the  states  respectively,  or  to  the  people.  Sup- 
pose A.  owned  a  thousand-acre  tract  of  land,  and  he  should 
sell  to  B.  five  hundred  acres  of  it  by  metes  and  bounds, 
and  it  should  turn  out  that  the  sur\'ey  of  land  con- 
tained fifteen  hundred  acres  instead  of  only  a  thousand 
acres.  A.  would  undoubtedly  be  entitled  to  the  whole 
surplus  in  the  land  whether  he  reser\'ed  to  himself  all 
over  and  above  the  five  hundred  acres  he  sold  to  B.  or 
not.  Now,  the  constitution,  not  only  delegates  to  the 
United  States  specifically  enumerated  powers,  but  ex- 
pressly reserves  all  powers  not  specifically  granted  to  the 
United  States,  to  the  states  respectively,  or  to  the  people  ; 
hence,  no  power  can  be  rightfully  accorded  to  the  United 
States  unless  it  can  be  found  in  the  letter  of  the  constitu- 
tion, or  may  be  fairly  inferred  as  a  part  of  a  power 
plainly  granted  by  the  letter  thereof,  which  rule  requires 
a  strict  construction  to  be  complied  with. 

But  that  court  claims  the  vesting  of  congress  with  au- 
thority to  enact  laws  had  the  eSect  of  converting  the 


172  CONSTITUTION   OF   THE   UNITED   STATES. 

United  States  into  a  sovereign  nation.  That  is  equally 
untenable,  for  it  is  not  claimed  that  the  congress  can  go 
outside  of  its  authority  under  the  constitution  to  make 
laws. 

It  is  shown  in  Chapter  III  that  power  to  make  laws 
under  the  limitations  of  a  charter  can  not  have  the  effect 
of  vesting  the  corporation  with  sovereignty,  and  the  con- 
stitution of  the  United  States  imposes  as  rigorous  restric- 
tions on  the  making  of  laws  as  were  imposed  by  the 
colonial  charters  or  by  the  charter  of  any  city  ;  conse- 
quently authority  to  make  laws  under  the  limited  au- 
thority of  the  constitution  could  not  of  itself  alone  have 
given  the  United  States  a  sovereign  government. 

However,  whether  the  United  States  is  a  sovereign  na- 
tion, or  simply  a  corporate  agent  of  the  people,  the  con- 
gress thereof  has,  under  its  authority  to  regulate  com- 
merce, the  right  to  control  foreign  ships,  while  they  are 
in  the  ports  of  any  state  within  the  union,  engaged  in 
carrying  commerce  to  or  from  the  United  States,  and 
may  determine  what  nation  or  nations  of  people  the  citi- 
zens of  the  United  States  may  trade  with,  and  pre- 
scribe the  terms  and  conditions  on  which  that  trade 
and  traffic  may  be  carried  on.  The  congress  may  also 
designate  the  articles  of  commerce  that  may  be  im- 
ported or  exported,  as  shown  by  the  embargo  acts  of 
1 798-1 800  and  1808.  And  may  regulate  American  ships 
and  shipping. 

Furthermore,  as  before  said,  if  the  congress  is  author- 
ized to  regulate  any  one  of  the  railroads,  canals,  turn- 
pikes or  dirt-roads  constructed  by  state  authority,  it 
must  necessarily  have  control  of  all  of  them,  and  thus 
the  whole  police  power  of  the  state  was  transferred  to  the 
congress  of  the  United  States  by  said  provision,  without 
reference  to  the  police  powers  of  the  states. 

Justice  Miller,  of  the  Supreme  Court  of   the   United 


TO   LAY   AND    COLLECT   TAXES,  ETC.  1 73 

States,  in  discussing  this  phase  of  the  question  in  the 
case  of  the  Wabash,  St.  Louis  and  Pacific  Railway  Co.  v. 
The  State  of  IlUnois,  said  that  there  is  a  class  of  cases 
that  the  states  have  exclusive  jurisdiction  of,  but  he  fails 
to  point  them  out,  and  I  doubt  if  he  could  have  done  so, 
as  learned  and  able  a  jurist  as  he  was,  for  there  is  no  dis- 
cernible boundary  line  between  jurisdiction  of  the  con- 
gress and  that  of  the  state,  if  the  congress  has  control  of 
any  of  the  means  of  carrying  commerce,  which  are  located 
entirely  in  any  one  state,  whether  there  by  the  laws  of 
nature,  or  put  there  by  the  state  for  the  convenience  of 
its  own  citizens  and  those  of  its  sister  states. 

Consequently,  ever}-  effort  on  the  part  of  congress  to 
interfere  with  any  means  of  carrjdng  commerce  is  the 
exercise  of  ungranted  powers  and  a  stigma  upon  the 
union  itself,  and  seriously  interferes  with  the  states  mak- 
ing other  and  valuable  improvements,  as  the  states  Vvill 
stop  making  improvements  unless  they  are  allowed  to 
control  them  by  state  laws. 


-f 


174  CONSTITUTION   OF   THE   UNITED   STATES. 


CHAPTER   VI. 

GRANT  OF  POLITICAL  POWERS — PROHIBITION  OF  POWERS 
TO  THE  STATES  AND  TO  CONGRESS. 


Article  I. 
Section  8. 

Par.  4.  "To  establish  a  uniform  rule  of  naturaliza- 
tion, and  uniform  laws  on  the  subject  of  bankruptcies 
throughout  the  United  States. ' ' 

The  United  States  having  been  formed  for  white  races 
of  people  only,*  and  the  compact  of  the  union  binding 
each  state  to  extend  to  the  citizens  of  every  other  state 
equal  privileges  and  immunities  with  its  own  citizens, 
being  agreed  to,  prevents  any  dark  races  of  people  from 
being  admitted  as  citizens ;  exclusive  authority  to  es- 
tablish naturalization  laws  should  have  been  vested  in 
the  congress,  for  privileges  and  immunities  includes  the 
right  of  marriage  and  transmitting  property  by  in- 
heritance, as  well  as  by  bargain  and  sale,  so  that  if  the 
States  were  authorized  to  enact  separate  laws  of  nat- 
uralization, and  also  authorized  to  pass  its  own  laws 
relating  to  marriages,  and  some  of  the  states  should 
make  it  lawful  for  the  whites  and  blacks  to  inter- 
marry, and  other  states  should  prohibit  such  marriages, 
and  some  of  the  states  should  naturalize  the  dark  race, 
and  other  states  should  refuse  to  make  the  dark  race 
citizens,  the  law  of  descent  and  distribution  would 
necessarily  become  so  entangled  as  to  render  it  im- 
possible to  dispose  of  the  rights  of  the  parties.     But  by 

*  Dred  Scott  case. 


GRANT   OF   POLITICAI,   POWERS,    ETC.  1 75 

vesting  the  congress  with  the  exclusive  right  to  pass  nat- 
uralization laws,  the  congress  must  adhere  to  the  consti- 
tution, and  extend  the  privilege  of  naturalization  to  the 
white  races  of  people  only,  so  that  although  any  state 
might  extend  authority  to  marriages  between  the  white 
and  black  races,  it  could  extend  no  further  than  that 
state  and  would  not  be  entitled  to  consideration  in  the 
other  states,  under  the  provision  of  the  constitution  re- 
quiring each  state  to  extend  equal  privileges  to  the  citi- 
zens of  each  of  the  other  states. 

Any  state  may  extend  to  persons  of  African  descent, 
or  to  emigrants  of  the  white  race,  the  right  to  vote  before 
they  shall  have  been  in  the  United  States  long  enough  to 
be  naturalized  under  the  laws  of  congress. 

The  privilege  of  voting  in  a  state  for  members  of  ' '  the 
most  numerous  branch  of  the  legislature,"  will  entitle 
them  to  vote  for  members  of  congress  and  presidential 
electors.  * 

But  the  right  to  vote  will  not  of  itself  make  them  citi- 
zens, or  entitle  them  to  equal  privileges  and  immunities 
in  the  several  states. 

The  extent  of  protection  due  by  the  United  States  to 
naturalized  citizens,  and  to  those  who  have  taken  the 
first  step  towards  becoming  naturalized,  without  being  in 
this  country  long  enough  to  take  the  final  oath,  has  been 
rendered  somewhat  doubtful  by  treaty  alliances. 

The  English  act  of  1870  provides  for  the  naturaliza- 
tion of  aliens  after  five  year's  residence  and  application 
to  the  secretary  of  state,  and  also  that  any  British  subject 
who  shall  voluntarily  become  naturalized  in  any  foreign 
country,  shall  after  five  j-ears'  residence  be  regarded  as 
alien  and  no  longer  a  British  subject,  A  treaty  was  en- 
tered into  the  same  year  between  Great  Britian  and  this 

*  Art.  I,  sec.  2,  Con. 


176  CONSTITUTION    OF    THE    UNITED    STATES. 

country  providing  that  aliens,  who  have  compHed  with 
the  conditions  of  admission  and  have  been  fully  natural- 
ized, should  be  recognized  as  such  by  the  country  of  his 
birth ;  but  the  original  allegiance  may  be  recovered  by 
much  the  same  process.  Treaties  were  also  made  by  the 
United  States  in  1868  with  Prussia,  Bavaria,  the  Grand 
Duchy  of  Baden,  Wurtenburg,  Grand  Duchey  of  Hess, 
Belgium  and  Mexico  ;  in  1869  with  Sweden  and  Norway  ; 
in  1870  with  the  Austro- Hungarian  empire,  and  in  1872 
with  Ecuador  and  Denmark.  These  treaties  have  the 
same  general  stipulations,  stating  a  period  of  residence, 
usually  five  years,  after  which  naturalization  is  permissi- 
ble and  to  be  recognized,  reserving  to  the  country^  of 
original  allegiance  the  right  to  punish  for  crimes  com- 
mitted, or  to  compel  the  execution  of  obligations  entered 
into  before  the  change  of  domicil,  and  entering  into 
mutual  obligation  to  recognize  the  rights  of  each  other. 
The  question  on  which  is  the  greatest  likelihood  of 
disagreement  under  existing  laws,  arises  where  an  alien 
comes  to  this  country  and  becomes  duly  naturalized  and 
then  returns.  Is  he  then  liable  to  undergo  military 
service  or  otherwise  recognize  allegiance  to  the  state  of 
his  birth?  Some  European  nations  hold  that  such  a 
transaction  on  its  face  is  evidence  of  an  intention  to 
escape  natural  obligations,  but  the  policy  of  our  gov- 
ernment has  always  been  to  protect  its  adopted  citizens 
where  the  naturalization  is  not  tainted  with  fraud.* 

The  right  of  expatriation  lies  at  the  foundation  of  the 
American  system,  and  the  United  States  can  not  afford  to 
surrender  that  right. 

The  inhabitants  of  the  colonies  were  British  subjects 
at  the  time  they  severed  the  tie  that  bound  them  to  that 

*  International  Cyclopedia,  vol.  10,  p.  339. 


GRANT    OF    POLITICAL   POWERS,    ETC.  1 77 

kingdom,   aud   constructed   charters  thereof  emanating 
from  themselves. 

To  have  admitted,  as  may  be  claimed  by  reason  of  the 
treaties  referred  to,  and  as  contended  by  most  of  the  Euro- 
pean nations,  that  the  consent  of  one's  native  country'  is 
necessary  to  authorize  him  to  sever  liis  allegiance  to  it,  and 
to  be  lawfully  naturalized  in  any  other  country-,  would  have 
prevented  our  revolutionary  ancestors  from  becoming 
citizens  of  the  United  States,  until  sanctioned  by  the 
treaty  recognizing  the  independence  of  the  several  states 
of  the  union.  It  also  surrenders  all  that  the  United 
States  gained  by  the  war  of  181 2  against  the  right  of 
searching  our  ships  and  taking  seamen  and  pressing  them 
into  servace  of  their  native  country. 

During  the  late  civil  war  large  numbers  came  from 
Germany  and  elsewhere,  and  enlisted  in  the  army  of  the 
United  States  and  ser\^ed  with  distinction,  and  were  nat- 
uralized before  remaining  in  this  countr>^  the  five  years. 
If  said  treaties  express  what  the  law  was  at  that  time,  it 
was  binding  on  the  United  States,  and  every  such  nat- 
uralization was  void. 

But  if  it  was  intended  by  said  treaties  to  constitute  a 
new  rule  on  the  subject,  they  will  prevent  the  United 
States  from  receiving  in  their  navy  and  army  citizens  of 
any  friendly  nation  that  has  assumed  the  attitude  of 
neutrality,  for  no  nation  can  allow  its  citizens  to  join 
the  army  of  either  of  the  belligerant  nations  and  re- 
main neutral,  and  according  to  said  treaties  they  will  con- 
tinue to  be  citizens  of  their  native  country  for  the  period 
of  five  years,  so  that  if  the  United  States  receives  them 
in  the  army  or  navy,  they,  by  that  act,  will  \'iolate  their 
obligation  to  the  neutral  nation,  and  subject  the  citizens 
thereof  enlisting  in  the  army  and  na\'>'  to  the  punishment 
indicated  by  the  proclamation  of  neutrality  of  their  na- 
tive country. 


178  CONSTITUTION  OF   THE  UNITED   STATES. 

The  reservation  of  the  right  to  punish  for  crimes  com- 
mitted in  his  native  countrj^  before  becoming  naturalized 
must  mean  extraditable  crimes  according  to  international 
law,  so  that  said  treaties  do  but  little  more  than  every 
extradition  treaty  ;  but  as  to  the  character  of  obligations 
entered  into  with  his  native  country  before  leaving  that 
may  be  enforced  under  said  treaties,  is  apt  to  cause  diffi- 
culties. It  is  a  recognized  rule,  the  allegiance  to  a 
country  includes  military  service  in  whatever  form  the 
government  may  prescribe,  therefore  that  service  is  in- 
cluded in  the  allegiance  transferred  to  the  nation  into 
which  he  is  naturalized  ;  hence,  that  can  not  be  the  char- 
acter of  the  obligation,  the  right  to  enforce  was  intended 
to  be  reserved  by  said  treaties. 

After  a  foreign  born  inhabitant  has  been  fully  nat- 
uralized, he  is  entitled  to  all  of  the  rights,  as  well  as 
privileges  and  immunities  he  would  be  entitled  to  if  he 
had  been  native  born,  except  that  of  holding  certain  offi- 
ces, such  as  president,  etc. 

Par.  4.  "To  establish  uniform  laws  on  the  subject  of 
bankruptcies  throughout  the  United  States. ' ' 

As  no  state  has  jurisdiction  beyond  its  territorial  limits, 
no  state  could  enact  a  bankrupt  law  that  would  protect 
even  its  own  citizens  against  the  payment  of  debts  to 
citizens  of  any  other  state. 

A  state  might  prevent  its  own  courts  from  giving  judg- 
ment against  its  own  bankrupt  law  if  they  were  not  pro- 
hibited from  impairing  contracts,  still  the  citizen  of  any 
other  state  would  have  the  right  to  sue  in  the  federal 
courts,  which  could  not  be  controlled  by  the  state  laws  ; 
therefore,  any  bankrupt  law  enacted  by  any  state  could 
not  protect  any  debtor.  But  in  addition  to  this  inherent 
difficulty  in  the  way  of  a  state  bankrupt  law,  it  is  pro- 
vided in  the  tenth  section  of  article  one  of  the  constitu- 
tion, that  no  state  shall  pass  any  law  impairing  the  obli- 


GRANT    OF   POI,lTlCAL   POWERS,    ETC.  1 79 

gation  of  a  contract  ;  and  every  bankrupt  law  necessarily 
impairs  the  obligation  of  contracts  :  it  is  true  this  pro- 
vision in  the  constitution  comes  after  that  which  dele- 
gates to  congress  alone  authority  to  pass  bankrupt  laws, 
and  is  a  part  of  that  plan,  which  was  doubtless  based  on 
the  difficulty  of  the  states  to  pass  an  effective  bankrupt 
law,  to  operate  alone  therein. 

The  power  of  congress  extends  to  relief  against  debts 
due  to  citizens  of  foreign  nations. 

However,  no  bankrupt  law  can  relieve  any  state 
against  its  liabilities,  for  that  would  be  interfering  with 
the  sovereignty  of  the  state,  and  a  state  may  re- 
pudiate its  debts,  since  the  adoption  of  the  nth  amend- 
ment to  the  constitution,  for  there  is  no  power  to 
force  a  state  to  pay  any  debt.  Nor  can  any  bankrupt 
law  relieve  any  municipal  corporation  of  its  debts,  for  as 
long  as  persons  who  are  solvent  live  in  a  municipal- 
ity, they  would  be  bound  to  pay  taxes ;  therefore, 
that  municipal  corporation  can  not  be  adjudged  a  bank- 
rupt. 

In  addition  thereto,  under  the  fundamental  principles 
of  the  government,  of  this  countrj-  as  well  as  that  of  En- 
gland (since  the  Magna  Charter  was  adopted  in  that 
kingdom),  no  taxation  or  scutage  can  be  assessed  against 
any  people  without  the  consent  of  their  representatives  ; 
hence,  no  court  can  order  the  laying  or  collecting  of 
taxes  to  wind  up  the  debts  of  any  municipal  corporation, 
or  for  any  other  purpose. 

Experience  of  the  business  of  the  world  shows,  that  in 
the  evolution  of  commerce,  some  of  the  best  business 
men  become  so  deeply  involved  in  debt,  as  to  bind  them 
in  a  state  of  bondage  to  their  creditors,  and  renders 
them  valueless  as   citizens  while    under    that    bondage^ 


l8o  CONSTITUTION   OP  THK  UNITED   STATES. 

who,  if  they  could  be  released,  would  make  good  citizens 
and  valuable  agents  in  the  development  of  the  resources 
of  the  country  ;  there  ought,  therefore,  to  be  some  way 
of  releasing  them  of  that  thralldom,  not  only  on  their 
own  account,  but  for  the  benefit  of  the  community  in 
which  they  live,  and  they  could  not  be  so  completely  re- 
lieved by  any  state  ;  hence,  the  authority  was  properly 
vested  in  congress. 

Par.  6.  "To  provide  for  the  punishment  of  counter- 
feiting the  securities  and  current  coin  of  the  United 
States;" 

Par.  7.   "To  establish  post-offices  and  post-roads  ;  " 

Par.  8.  "To  promote  the  progress  of  science  and 
useful  arts,  by  securing  for  limited  times  to  authors  and 
inventors  the  exclusive  right  to  their  respective  writings 
and  discoveries  ; ' ' 

These  three  powers  properly  belong  to  what  is  known 
as  the  civil  laws,  and  according  to  the  general  plan  of 
the  union,  they  would  fall  to  the  state  ;  but  each  one  of 
them  is  necessary  to  enable  the  federal  authorities  to 
maintain  the  government  thereof,  and  are  necessarily 
vested  in  the  congress,  but  they  ought  not  to  be  aug- 
mented by  interpretation  ;  on  the  contrary  they  should  be 
strictly  construed. 

With  the  exception  of  laws  to  punish  counterfeiting 
the  securities  and  currency  of  national  banks,  I  am  not 
aware  of  any  encroachment  on  these  powers  by  the  fed- 
eral government  even  when  strictly  construed. 

But  if  the  congress  is  authorized  to  charter  banks,  au- 
thority to  create  must  be  accompanied  by  authority  to 
protect  them,  and  as  the  laws  to  punish  for  counterfeit- 
ing bank  currency  and  securities  must  be  the  same  as  laws 
for  punishing  the  counterfeiting  of  coin  and  securities  of 
the  United  States,  no  serious  inconvenience  can  flow 
from  the  exercise  of  that  power  by  the  congress,  particu- 


GRANT    OF    POLITICAL    POWERS,    ETC.  l8l 

larly  as  it  is  held  by  the  supreme  court  that  the  states 
may  pass  laws  to  punish  counterfeiting  either  the  coin 
or  securities  of  the  United  States,  or  the  currency  or  se- 
curities of  national  banks  ;  but  it  was  also  held  that  the 
state  and  federal  courts  are  foreign  jurisdictions.*  There- 
fore, a  punishment  under  state  statutes  in  a  state  court 
would  not  bar  a  prosecution  in  a  federal  court  under  an 
act  of  congress. 

I  can  not  assent  to  this  ruling  by  the  supreme  court, 
but  will  not  discuss  it  at  this  point  further  than  to  say 
that  the  government  of  the  United  States  constitutes  a 
part  of  that  of  each  one  of  the  states,  and  whenever  a 
citizen  is  punished  by  either  a  state  or  the  federal  govern- 
ment, for  a  crime,  the}'  each  have  jurisdiction  of,  he  should 
not  again  be  punished  by  the  other  for  the  same  offense  ; 
because  it  is  in  conflict  with  the  general  principles  upon 
which  the  dual  form  of  government  of  the  United  States 
is  based. 

The  authority  to  establish  post-offices  and  post-roads 
being  vested  in  the  congress  is  so  clearly  correct  that  it 
needs  neither  explanation  nor  comment. 

Nor  does  the  provision  which  authorizes  the  congress 
to  secure  to  authors  and  inventors  the  exclusive  use  of 
their  writings  and  discoveries  for  limited  times,  call  for 
explanation  or  comment,  further  than  there  is  danger  of 
the  congress  renewing  useful  patents  too  often,  and  for 
a  longer  time  than  they  merit. 

Par.  9.  "To  constitute  tribunals  inferior  to  the  su- 
preme court." 

The  tribunals  intended  by  this  paragraph  must  be  such 
as  clerks,  marshals,  bailiffs,  commissioners  and  all  other 
necessary  official  aid  to  the  court  in  executing  the  laws, 


*  Gordon  v.  Gillford,  99  U.  S. 


1 82  CONSTITUTION   OF   THE   UNITED   STATES. 

for  article  3,  relating  to  the  judiciary,  authorizes  the  es- 
tablishment of  inferior  courts,  over  which  the  supreme 
court  shall  have  appellate  jurisdiction. 

Par.  10.  "To  define  and  punish  piracies  and  felonies 
committed  on  the  high  seas  and  offenses  against  the  law 
of  nations." 

Authority  to  punish  piracies  and  felonies  committed  on 
the  high  seas  and  offenses  against  the  law  of  nations 
must  be  vested  in  that  division  of  every  government  in- 
trusted with  the  maintenance  of  the  government  itself, 
and  as  the  duty  not  only  to  maintain  the  government  of 
the  United  States,  but  of  the  states  also,  is  lodged  in  the 
United  States  government,  it  was  essentially  necessary 
to  vest  the  congress  with  said  powers.  Of  course,  the 
felonies  committed  on  the  high  seas  referred  to  must  be 
felonies  committed  on  ships,  whether  owned  by  any  one 
of  the  states,  or  by  the  United .  States,  or  by  private 
citizens,  provided  it  shall  float  under  the  flag  of  the 
United  States. 

As  shown  in  the  discussion  of  the  right  of  congress  to 
regulate  commerce,  every  ship  is  regarded  as  a  part  of  the 
territory'  of  the  nation  whose  flag  it  carries ;  therefore, 
every  felony  committed  on  its  ships  must  be  treated  as  if 
it  had  been  committed  within  the  nation  itself. 

But  as  ships  will  always  float  under  the  flag  of  the 
United  States,  not  under  the  flag  of  any  state,  the 
United  States  would  be  responsible,  not  the  state,  al- 
though the  ship  upon  which  the  felony  charged  to  have 
been  committed  may  as  matter  of  fact  belong  to  one  of 
the  states  ;  and,  as  the  states  are  prohibited  from  owning 
or  keeping  ships  of  war  in  times  of  peace,  the  ship  of 
no  state  can  carry  the  territory  or  jurisdiction  thereof 
out  into  the  high  seas  ;  therefore  such  felonies  must  al- 
ways be   committed    outside    the    jurisdiction    of    any 


GRANT   OF   POUTICAL   POWERS,  ETC.  1 83 

State ;  consequently,  it  was  necessary  to  give  the  con- 
gress jurisdiction  of  the  felonies  committed  on  the  seas. 

As  to  jurisdiction  of  offenses  against  the  law  of  na- 
tions, since  the  United  States  is  required  not  only  to 
protect  itself  but  the  states  also,  the  United  States  alone 
must  be  held  responsible  for  all  violations  of  the  law  of 
nations  committed  by  a  citizen  of  any  of  the  states,  and 
must  have  jurisdiction  of  that  class  of  cases. 

Par.  II.  "To  declare  war,  grant  letters  of  marque  and 
reprisal,  and  make  rules  concerning  captures  on  land  and 
water. ' ' 

Par,  12.  "To  raise  and  support  armies,  but  no  appro- 
priation of  money  to  that  use  shall  be  for  a  longer  term 
than  two  years." 

Par.  13.   "  To  provide  and  maintain  a  navy. " 

Par.  14.  "To  make  rules  for  the  government  and  reg- 
ulations for  the  land  and  naval  forces. ' ' 

Par.  15.  "To  provide  for  calling  forth  the  militia  to 
execute  the  laws  of  the  union,  suppress  insurrection  and 
repel  invasion," 

Par.  16.  "To  provide  for  organizing,  arming  and  dis- 
ciplining the  militia,  and  for  governing  such  part  of 
them  as  may  be  employed  in  the  ser\'ice  of  the  United 
States,  reserving  to  the  states,  respectively,  the  appoint- 
ment of  the  oflScers  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  con- 
gress. ' ' 

These  six  paragraphs  constitute  each  a  separate  part 
of  the  authority  of  making  and  conducting  wars,  and 
each  grant  is  necessary  for  that  purpose.  Without  au- 
thority of  the  United  States  to  make  and  maintain  wars, 
the  government  thereof  could  neither  maintain  itself,  nor 
the  republican  form  of  government  of  the  respective 
states.  But  for  the  purpose  of  guarding  against  unneces- 
sary and  useless  exercise  of  these  powers,  they  are  di- 


184  CONSTITUTION   OF   THE   UNITED   STATES. 

vided  between  the  legislative  and  executive  departments, 
and  as  they  can  be  better  explained  by  considering  the 
power  delegated  to  each,  and  in  connection  with  each 
other,  further  consideration  is  postponed  until  the  execu- 
tive department  shall  be  reached. 

Par.  17.  "To  exercise  exclusive  legislation  in  all 
cases  whatsoever  over  such  district  (not  exceeding  ten 
miles  square)  as  may  by  cession  of  particular  states,  and 
the  acceptance  of  congress,  become  the  seat  of  the  gov- 
ernment of  the  United  States,  and  to  exercise  like  au- 
thority over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  state  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dock-yards  and 
other  needful  buildings. ' ' 

This  paragraph  granting  exclusive  legislation  to  the 
congress  over  the  seat  of  government  and  places  pur- 
chased to  erect  forts,  arsenals,  etc. ,  is  a  limitation  on  the 
congress  exercising  exclusive  legislation  anywhere  else 
within  an}^  of  the  states. 

The  extent  to  which  the  congress  may  go  in  the  exer- 
cises of  that  exclusive  legislation  seems  to  be  unlimited 
by  the  letter  of  the  constitution,  but  there  are  serious 
difl&culties  in  the  way  of  exercising  that  authority  by 
the  congress. 

The  District  of  Columbia,  the  seat  of  the  government, 
was  taken  partly  from  the  state  of  Maryland  and  partly 
from  the  state  of  Virginia,  in  accordance  with  authority 
granted  by  this  paragraph.  If  this  district  constitutes  a 
separate  jurisdiction  from  the  states  within  which  the 
respective  parts  are  situated,  it  can  not  be  a  state  with  a 
republican  form  of  government  as  long  as  its  law-makers 
are  chosen  by  the  states  generally  and  not  by  the  people 
thereof  ;  and  the  language  of  the  paragraph  is,  "  to  ex- 
ercise exclusive  legislation  in  all  cases  whatsoever  over 


GRANT   OF   POLITICAL   POWERS,    ETC.  1 85 

such  district."  The  congress  must  do  the  legislation 
thereof  itself,  and  can  not  authorize  it  to  be  done  by  any 
other  organ  or  government. 

And  this  paragraph  does  not  extend  the  jurisdiction  of 
the  congress  over  any  additional  objects  or  subjects  of 
legislation. 

The  congress  can  not  extend  the  English  common  law 
over  said  district,  as  it  relates  largely  to  royalty  or 
classes  of  people,  without  coming  in  conflict  with  the  pro- 
vision of  the  constitution  prohibiting  the  granting  of 
titles  of  nobility. 

Nor  can  the  congress  adopt  the  common  law  of  any 
of  the  states  without  preventing  ever^'  other  state  from 
changing  its  own  laws  in  relation  thereto.  Nor  is  it  pos- 
sible to  compress  the  laws  of  the  several  states  relating 
to  marriage,  descent  and  distribution  ;  tenures  of  title  to 
real  estate,  evidences  of  title  to  personal  property  ;  of 
contracts,  the  extent  contracts  shall  be  guarded  by 
statutes  of  frauds  and  perjuries  ;  nor  of  trade  and  traffic 
to  be  carried  on  by  the  citizens  thereof. 

But  a  more  serious  objection  to  that  interpretation  of 
this  paragraph  arises  out  of  the  fact  that  if  said  district 
be  entirely  separated  from  the  states  in  which  its  re- 
spective parts  are  located  it  will  deprive  the  inhabitants 
thereof  of  citizenship,  for  until  the  fourteenth  amend- 
ment to  the  constitution  was  adopted  no  one  could  be  a 
citizen  of  the  United  States  unless  he  was  a  citizen  of 
some  one  of  the  states  in  the  Union  ;  or  if  the  inhabitants 
thereof  could  be  citizens  of  the  United  States,  still  they 
would  be  deprived  of  voting  for  any  representation  in 
congress,  or  for  any  presidential  elector. 

Consequently,  that  part  of  said  district  taken  from  the 
state  of  Maryland  is  treated  as  still  in  that  state  and 
subject  to  the  laws  thereof,  and  the  inhabitants  entitled 


1 86  CONSTITUTION   OF   THE   UNITED   STATES. 

to  all  of  the  rights  as  well  as  the  privileges  and  im- 
munities the  inhabitants  of  any  other  part  of  that  state 
enjoy  ;  and  the  inhabitants  of  that  part  of  said  district 
taken  from  Virginia  are  entitled  to  the  rights,  privileges 
and  immunities  of  the  citizens  of  that  state  ;  and  the 
same  rule  applies  to  the  places  where  the  forts,  magazines, 
arsenals,  dock-yards,  etc.,  may  be  situated.  But  the  con- 
gress being  authorized  to  ' '  exercise  exclusive  legislation 
in  all  cases  whatsoever ' '  over  said  places  by  the  plain 
letter  of  the  constitution,  that  authority  in  the  congress 
must  be  regarded  by  all  to  the  fullest  extent  it  can  be 
exercised  under  the  system  of  governments  established 
for  the  United  States.  Though,  as  we  have  seen,  the 
congress  being  inadequate  to  the  duty  of  exercising  all 
of  the  legislation  required  for  the  welfare  of  said  places, 
we  are  compelled  to  consider  the  language  therein  to 
have  been  used  in  a  qualified  sense. 

Since  the  language  must  be  considered  in  a  qualified 
sense,  the  most  reasonable  qualification  that  can  be  put 
upon  it,  is,  that  jurisdiction  to  legislate  over  the  places 
named  in  the  paragraph,  shotdd  be  taken  as  authority  to 
exercise  exclusive  legislation  upon  all  subjects  the  con- 
gress was  vested  with  authority  to  legislate  upon,  and  to 
exercise  exclusive  legislation  over  the  land  itself  within 
said  district,  and  to  appropriate  any  part  thereof,  to  any 
governmental  use  within  the  scope  of  the  authority  of  the 
congress  to  regulate  ;  to  lay  off  so  much  thereof,  into  lots, 
streets  and  alleys,  and  reserve  some  lots  for  the  erection  of 
government  buildings  and  sell  other  lots,  and  to  construct 
such  buildings  as  to  the  congress  might  seem  proper  ; 
and  to  provide  for  the  protection  of  the  same,  and  to  pro- 
vide for  keeping  good  order  in  such  city,  and  the  whole 
of  said  district ;  leaving  the  regulation  of  the  civil  rights 
of  the  people  thereof,  under  the  control  and  regulation  of 
the  state,  with  all  the  rights,  privileges  and  immunities 


GRANT   OF   POLITICAL   POWERS,    ETC.  1 87 

of  citizens  of  the  state  in  which  that  part  of  said  district 
wherein  they  resided  might  be  situated.  And  as  this  is 
the  only  way  the  inhabitants  of  said  district  can  be  au- 
thorized to  take  part  in  either  congressional  elections,  or 
in  choosing  presidential  electors,  said  district  is  held  to 
be  a  part  of  the  state  in  which  its  representative  parts 
are  situated,  and  the  permanent  inhabitants  thereof  are 
citizens  of  the  state  in  which  that  part  of  said  district  in 
which  they  reside  is  situated. 

This  rule  is  also  made  to  apply  to  the  places  wherein 
forts,  magazines,  arsenals,  dock-yards  and  other  build- 
ings are  erected  by  the  United  States. 

Par.  18.  "To  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  constitution 
in  the  government  of  the  United  States,  or  in  any  depart- 
ment or  officer  thereof. ' ' 

This  paragraph  is  said  to  have  found  its  way  into  the 
constitution  while  the  draft  thereof  was  before  the  com- 
mittee on  style  ;  be  that  as  it  may,  the  constitution  was 
but  a  proposition  when  it  left  the  convention,  and  the 
paragraph  was  in  the  constitution,  and  constituted  a  part 
of  it  when  it  was  submitted  to  the  states,  therefore  was 
ratified  by  the  conventions  of  the  several  states  as  a  part 
of  that  instrument,  and  is  entitled  to  as  much  considera- 
tion as  any  other  part. 

This  paragraph  is  important,  for  it  shows  that  certain 
powers  were  delegated  to  the  United  States  as  an  en- 
tirety ;  and  that  certain  powers  were  delegated  to  differ- 
ent departments  ;  and  certain  other  powers  were  dele- 
gated to  specified  officers  of  the  United  States. 

A  close  examination  of  the  constitution  will  show  that 
no  power  was  delegated  to  the  United  States  except  such 
incidental  powers  as  are  necessary  to  enable  the  United 
States  to  carry  into  execution  a  specified  duty  imposed 


1 88  CONSTITUTION   OF  THE   UNITED   STATES. 

such  as  guaranteeing  to  the  states  a  repubhcan  form  of 
government  and  other  like  duties  and  trusts. 

The  great  mass  of  powers  delegated  by  the  constitution 
is  vested  directly  in  a  distinct  department,  or  a  named 
official  of  the  United  States,  and  are  not  permitted  to 
pass  through  the  government  of  the  United  States  to 
such  department  or  official,  enables  the  several  depart- 
ments to  exercise  a  restraining  influence,  not  only  on 
each  other,  but  on  the  United  States.  And  this  para- 
graph recognizes  that  division  of  the  powers  granted  by 
the  constitution. 

With  the  powers  granted  to  separate  departments  in- 
stead of  to  the  government,  it  is  impossible  for  the  gov- 
ernment to  be  sovereign,  yet  the  supreme  court  has 
made  use  of  this  paragraph  to  aid  in  showing  the  United 
States  to  have  a  sovereign  government. 

That  part  of  this  paragraph  that  authorizes  congress 
to  make  laws  which  are  necessary  and  proper  for  carry- 
ing into  execution  the  powers  delegated  to  congress  was 
entirely  useless,  for  the  delegation  of  a  power  to  the  law 
making  authority  carries  with  it  authority  to  make  a  law 
by  which  the  powers  can  be  executed.  But  it  was  pru- 
dent, if  not  necessary,  to  expressly  authorize  congress  to 
make  laws  by  which  powers  delegated  to  another  depart- 
ment or  officers  could  be  carried  into  execution. 

Hence,  that  part  of  this  paragraph  which  recognizes 
the  delegation  of  powers  directly  to  the  departments  and 
officers,  that  do  not  pass  through  the  government,  was 
an  important  provision. 

Thus  far,  we  have  been  considering  grants  of  power  to 
the  congress,  but  now  we  approach  section  nine  of  article 
one,  which  contains  limitations  on  the  exercise  of  the 
powers  granted  in  section  eight. 

A  question  may  arise  as  to  whether  these  limitations 


GRANT   OF   POLITICAL    POWERS,    ETC.  1 89 

on  the  powers  granted  shall  be  strictly  construed,  as  in 
construing  limitations  of  authority  in  powers  of  at- 
torney. 

It  will  be  conceded  by  all  that  the  powers  granted  by 
section  eight  to  the  congress  were  granted  by  the  sov- 
ereign authority  ;  and  unless  the  powers  were  granted  by 
the  sovereign  authority,  the  government  of  the  United 
States  must  be  one  of  usurpation,  which  I  suppose  no 
American  citizen  is  ready  to  admit. 

Then  the  universal  rule  of  interpreting  grants  by  the 
sovereign  authority  is  to  construe  them  strictly  ;  the 
grant  being  strictly  construed,  it  will  be  a  matter  of  but 
little  importance  whether  the  Hmitations  thereof  be 
strictly  interpreted  or  not. 

SECTION    9. 

Par.  I.  Relates  to  the  importation  of  African  slaves 
until  after  1808,  and  is  now  obsolete. 

Par.  2.  "The  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when  in  cases  of  rebellion 
or  invasion  the  public  safety  may  require  it. ' ' 

Par.  3.  "No  bill  of  attainder  or  ex  post  facto  law  shall 
be  passed." 

Par.  4.  "No  capitation  or  other  direct  tax  shall  be 
laid,  unless  in  proportion  to  the  census  or  enumeration 
hereinbefore  directed  to  be  taken." 

Par.  5.  "No  tax  or  duty  shall  be  laid  on  articles  ex- 
ported from  any  state. ' ' 

Par.  6.  "No  preference  shall  be  given  by  any  regula- 
tion of  commerce  or  revenue  to  the  ports  of  one  state 
over  those  of  another  ;  nor  shall  vessels  bound  to,  or 
from  one  state,  be  obliged  to  enter,  clear,  or  pay  duties 
in  another." 

Par.  7.  "No  money  shall  be  drawn  from  the  treas- 
ury,   but   in  consequence  of    appropriations    made    by 


igo  CONSTITUTION   OF   THE   UNITKD   STATES. 

law  ;  and  a  regular  statement  and  account  of  the  receipts 
and  expenditures  of  all  public  money  shall  be  published 
from  time  to  time. ' ' 

Par.  8.  "  No  title  of  nobility  shall  be  granted  by  the 
United  States  ;  and  ilo  person  holding  any  ofl&ce  of  profit 
or  trust  under  them,  shall,  without  the  consent  of  the 
congress,  accept  of  any  present,  emolument,  office,  or 
title  of  any  kind  whatever,  from  any  king,  prince,  or 
foreign  state." 

The  unrestrained  right  to  the  zcr//  of  habeas  corpus  was 
taken  from  the  British  constitution,  and  has  been  dis- 
cussed by  the  courts  and  statesmen,  both  of  the  United 
States  and  of  England,  and  it  is  useless  to  say  more 
about  it  than  that,  as  long  as  the  judges  have  the  cour- 
age to  discharge  their  duty  and  comply  with  their  oath 
of  office,  this  writ  is  a  complete  protection  against  im- 
prisoning persons  for  political  purposes,  and  constitutes 
one  of  the  bulwarks  of  personal  liberty  under  the  English 
civilization. 

Bills  of  attainder,  in  brief,  are  legislative  trials  and 
convictions,  and  although  it  is  elsewhere  provided  in  the 
constitution  that  no  one  shall  be  deprived  of  his  life, 
liberty  or  property,  except  by  due  course  of  law,  it  w^as 
wise  to  insert  this  prohibition  against  the  authority  of 
the  congress  to  enact  bills  of  attainder. 

The  ex  post  facto  laws  referred  to  in  this  paragraph 
apply  to  penal  and  criminal  laws  only,  and  the  congress 
by  it  is  prohibited  from  making  any  act  a  crime  or  penal 
offense  after  it  shall  have  been  committed.  That  no  one 
should  be  made  to  suffer  for  doing  that  which  he  has  a 
perfect  right  to  do  at  the  time  he  does  it,  is  so  plain  to 
the  human  mind  as  to  require  no  comment. 

The  prohibition  against  bills  of  attainder  and  against 
ex  post  facto  law  was  also  taken  from  the  magna  charta  of 


GRANT   OF   POLITICAL   POWERS,    ETC.  I9I 

England,  and  has  received  the  commendation  of  statesmen 
on  both  sides  of  the  ocean. 

The  limitation  in  taxation  as  well  as  the  power  to 
regulate  commerce  have  been  fully  considered  in  treat- 
ing of  the  power  granted  in  section  eight  of  the  con- 
stitution. 

As  to  titles  of  nobility,  they  are  so  repugnant  to  the 
free  governments  of  the  United  States  that  it  is  some- 
what surprising  that  the  makers  of  the  constitution 
should  have  thought  it  necessary  to  put  that  prohibition 
in  the  constitution. 

But  since  the  United  States  bonds,  together  with  the 
interest-bearing  bonds  of  municipalities  and  states, 
and  the  bonds  of  private  corporations,  constitute  so 
large  a  proportion  of  the  property  in  the  United  States, 
that  the  owners  thereof  and  of  stock  in  favored  corpora- 
tions, ha\'ing  accumulated  colossal  fortunes  to  be  dissi- 
pated and  squandered  b}'  their  heirs,  have  betrayed  a 
strong  inclination  to  acquire  titles,  through  which  to  en- 
tail those  fortunes  on  their  posterity.  That  inclination 
is  so  strong  as  to  have  manifested  itself  in  efforts  on  the 
parts  of  the  possessors  of  those  fortunes  to  negotiate 
marriages  betw^een  their  daughters  and  titled  men  from 
foreign  countries. 

Those  wealthy  dealers  having  control  of  the  money 
capital  of  the  United  States,  can  furnish  the  money  to 
carry  elections  ;  therefore  they  are  enabled  to  exercise  a 
potent  influence  in  elections,  and  thej'  might  cause  such 
changes  as  to  transfer  the  sovereign  authority  from  the 
people  to  a  moneyed  aristocracy.  But  before  that  change 
can  be  effected  this  prohibition  against  granting  titles  of 
nobility  will  have  to  be  expunged  from  the  constitution,  and 
to  change  the  constitution  in  relation  thereto  will  require 
the  assent  of  three-fourths  of  the  states.     Not  only  is 


192  CONSTITUTION   OF   THE   UNITED   STATES. 

the  interest  of  the  people  of  three- fourths  of  the  states 
against  such  a  change,  but  this  provision  is  so  thoroughly 
imbedded  in  the  minds  and  hearts  of  the  American  peo- 
ple that  it  is  scarcely  possible  to  amend  it  out  of  the 
constitntion. 

Consequently,  this  is  a  very  important  and  valuable 
provision  of  the  constitution  ;  and  if  it  is  not  of  sufi&cient 
force  to  prevent  the  revolution  now  being  inaugurated,  it 
will  prove  a  formidable  check  to  it. 

The  prohibition  against  public  officers  accepting  pres- 
ents, etc.,  or  titles  from  any  king,  prince  or  foreign  coun- 
try, is  in  aid  of  the  prohibition  against  the  granting  of 
titles  of  nobility  ;  but  while  this  provision  is  limited  to 
public  officers,  no  one  can  accept  any  title  of  nobility 
from  any  foreign  king,  prince  or  foreign  nation,  except 
to  the  extent  he  may  owe  allegiance  thereto,  and  as  long 
as  he  may  continue  to  owe  allegiance  thereto  he  will  be 
ineligible  to  hold  any  office  under  the  United  States. 

Section  id. 

Relates  to  prohibitions  on  the  powers  of  the  states, 
which  have  been  to  some  extent  considered  in  treating  of 
the  grant  of  the  same  powers  to  the  congress,  and  there- 
fore taken  away  from  the  states.  The  powers  expressly 
prohibited  to  the  states  are  as  follows  : 

Par.  I.  "No  state  shall  enter  into  any  treaty,  alliance, 
or  confederation ;  grant  letters  of  marque  and  reprisal ; 
coin  money ;  emit  bills  of  credit ;  make  any  thing  but 
gold  and  silver  coin  a  tender  in  payment  of  debts ;  pass 
any  bill  of  attainder  ;  ex  post  facto  law  ;  or  law  impairing 
the  obligation  of  contracts  ;  or  grant  any  title  of  no- 
bility." 

Par.  2.  "No  state  shall,  without  the  consent  of  the 
congress,  lay  any  imposts  or  duties  on  imposts  or  exports. 


GRANT  OF   POLITIC AI,  POWERS,  ETC.  1 93 

except  what  may  be  absolutely  necessary  for  executing 
its  inspection  laws ;  and  the  net  produce  of  all  duties 
and  imposts  laid  by  any  state  on  imports  or  exports  shall 
be  for  the  use  of  the  treasury  of  the  United  States ;  and 
all  such  laws  shall  be  subject  to  the  revision  and  control 
of  the  congress." 

Par.  3.  "  No  state  shall,  without  the  consent  of  con- 
gress, lay  any  duty  of  tonnage,  keep  troops  or  ships  of 
war  in  time  of  peace,  enter  into  any  agreement  or  com- 
pact with  another  state,  or  with  a  foreign  power,  or  en- 
gage in  war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay." 

The  states  having  entered  into  the  compact  of  the 
union  under  the  Articles  of  Confederation,  any  other  al- 
liance, compact  or  confederation  must  necessarily  conflict 
with  the  compact  of  the  union  and  the  equality  of  the 
states  ;  for  any  compact  or  agreement  between  two  or 
more  states  would  be  like  two  or  more  members  of 
a  business  firm  conspiring  against  the  firm ;  as  no 
two  states  would  desire  to  enter  into  a  compact, 
independent  of  the  union,  unless  they  desired  to 
get  an  advantage  over  the  other  states  in  the  union. 
If  the  states  could  make  treaties  or  compacts  with 
foreign  nations,  they  could  b}'  such  treaties,  not  onh' 
divest  the  congress  of  the  power  to  regulate  commerce 
with  foreign  nations,  but  might  impair  the  power  of  the 
United  States  to  declare  or  carry  on  a  war  with  a  nation 
having  a  treaty  with  one  or  more  of  the  states  ;  hence, 
it  was  a  wise  provision,  to  take  from  the  states,  by  express 
letter  of  the  constitution,  authority  to  make  any  inde- 
dependent  treaties  or  compacts,  either  between  any  two 
or  more  states,  or  with  foreign  nations. 

Since  the  duty  of  protecting  the  states  against  every 
foreign  force,  as  well  as  against  each  other,  is  imposed 
on  the  United  States,  and  letters  of  marque  and  reprisal 


194  CONSTITUTION   OF  THE  UNITED  STATES. 

can  be  used  only  as  forces  of  war,  it  was  necessary  to 
prohibit  the  states  from  granting  them. 

The  prohibitions  against  the  states  coining  money  or 
their  making  any  thing  but  gold  and  silver  coin  a  tender 
in  payment  of  debts,  have  each  been  discussed  in  con- 
nection with  the  grant  of  power  to  the  congress  to  coin 
money  and  to  borrow  money. 

The  states  being  sovereign,  they  can  not  be  sued  with- 
out their  consent,  and  have  the  power  to  repudiate  any 
debt,  and  there  is  no  power  to  force  them  to  pay,  though 
the  supreme  court  of  the  United  States  held  that  they 
could  be  sued  in  the  case  of  Chisholm  v.  The  State  of 
Georgia,  but  that  decision  caused  an  amendment  to  the 
constitution  denying  to  the  federal  courts  jurisdiction  of 
actions  or  proceedings  against  any  state  by  a  citizen 
of  another  state,  or  a  citizen  of  a  foreign  state  or  na- 
tion ;*  but  this  amendment  leaves  that  court  with  juris- 
diction of  actions  brought  by  one  state  against  another, 
hence  no  state  can  repudiate  any  obligation  to  a  sister 
state. 

Bills  of  credit  could  not  constitute  obligations  to  a 
sister  state,  and  from  their  uses  generally,  they  would 
pass  into  the  hands  of  those  who  are  least  able  to  lose 
their  value  ;  but  the  controlling  motive  that  caused  the 
states  to  be  prohibited  from  emitting  bills  of  credit,  was 
the  great  volume  of  paper  money  issued  by  the  states 
during  the  Revolutionary  War  that  was  of  but  little  value 
at  the  time  the  constitution  was  being  framed,  because 
it  was  out  of  the  power  of  the  states  to  redeem  it,  which 
aided  in  depressing  the  value  of  the  paper  obligations  of 
the  confederacy  ;  experience  of  over  a  hundred  years 
proves  the  wisdom  of  this  prohibition  against  the  states. 

As  the  congress  is  prohibited   from  passing  bills  of 


*  nth  Amendment  to  the  Constitution, 


GRANT   OF    POLITICAL   POWERS,    ETC.  1 95 

attainder  or  ex  post  facto  laws,  both  of  which  have  been 
briefly  explained,  to  completely  guard  the  citizens  against 
bills  of  attainder  and  ex  post  facto  laws,  it  was  also  neces- 
sary to  prohibit  the  states  from  doing  the  same. 

But  the  provision  against  the  states  passing  any  law 
impairing  the  obligation  of  contracts,  and  against  the 
states  granting  titles  of  nobilitj',  are  each  of  Ameri- 
can origin,  and  are  each  of  importance.  The  latter 
is  in  conflict  with  the  principles  of  government,  and  it 
would  be  useless  to  prohibit  the  congress  from  granting 
titles  of  nobility  if  the  states  could  do  so,  therefore  that 
prohibition  was  necessary. 

But  prohibiting  the  states  from  passing  laws  impairing 
the  obligation  of  contracts  has  frequently  been  before  the 
supreme  court  of  the  United  States  for  interpretation,  and 
that  court  has  uniformly  construed  this  provision  to  in- 
clude charters  granted  by  a  state  to  private  persons,  and 
that  said  provision  was  sufficient  to  prevent  the  states  from 
amending  or  repealing  such  charters,  though  that  inter- 
pretation has  never  been  approved  of  by  all  the  judges 
thereof. 

The  great  inconvenience  that  that  interpretation  has 
caused  the  states,  together  with  the  fact  that  it  has  al- 
ways been  sustained  by  a  divided  court,  entitles  it  to  a 
careful  consideration. 

The  United  States  are  required  to  guarantee  to  each 
state  a  republican  form  of  government,  which  can  not 
be  done  as  long  as  the  right  of  the  legislature  of  a  state 
to  barter  away  the  power  of  the  state  to  maintain  a  re- 
publican form  of  government  is  upheld  by  the  courts  of 
the  United  States. 

If  the  legislature  of  a  state  can  transfer  the  right  of 
the  state  to  exercise  its  police  powers  in  any  one  particu- 
lar to  a  private  enterprise,  another  legislature  can  trans- 
fer the  right  of  the  state  to  exercise  other  police  powers 


196  CONSTITUTION    OF   THE   UNITED   STATES. 

to  another  private  corporation  or  private  individual,  and 
the  different  legislatures  may  continue  to  grant  the  powers 
thereof  until  the  entire  police  power  of  the  state  is  bar- 
tered away  to  private  persons  or  private  corporations  for 
private  uses,  and  the  people  thereof  completely  deprived 
of  their  right  to  govern  themselves,  or  to  elect  ofl&cers 
for  the  government  of  their  state  ;  for  their  right  to  man- 
age their  domestic  affairs  will  have  been  contracted  away 
to  moneyed  individuals  or  to  wealthy  private  corpora- 
tions, and  no  possible  way  to  help  themselves  within 
their  reach. 

To  get  relief  from  that  bondage,  they  would  be  com- 
pelled to  appeal  to  the  United  States  to  come  to  their 
relief  and  secure  to  them  a  republican  form  of  govern- 
ment, and  relieve  them  from  bondage,  for  the  people 
would  be  powerless  to  relieve  themselves  from  their 
bonds,  however  tyrannically  they  may  be  treated  by 
their  masters,  whether  stockholders  in  private  corpora- 
tions or  individual  owners  of  the  police  powers  that  may 
have  been  granted  by  the  different  legislatures  of  that 
state.  The  constitution  of  no  state  authorizes  its  legis- 
lature to  barter  away  the  liberties  of  the  people  ;  but,  if 
the  legislatures  of  the  states  are  authorized  to  barter 
away  the  police  powers  of  the  state,  they  are  practically 
authorized  to  barter  away  the  right  of  the  people  to  gov- 
ern themselves.  The  rule  of  interpreting  grants  of  power 
is  to  so  construe  the  grant  as  to  leave  every  thing  not 
expressly  granted  with  the  sovereign  authority. 

No  state  has  as  yet  granted  away  its  entire  police 
powers ;  but,  if  a  state  can,  by  its  legislature,  barter 
away  a  part  of  its  police  powers  by  an  irrevocable  con- 
tract, it  can  the  whole  by  the  same  sort  of  contract  or 
contracts.  And,  whenever  it  reaches  that  stage  in  the 
drama,  it  will  become  the  duty  of  the  United  States  to 


GRANT   OF   POLITICAL   POWERS,  ETC.  1 97 

take  action,  under  its  obligation  to  guarantee  to  each 
state  a  republican  form  of  government,  and  it  must 
either  relieve  the  state  by  nullifying  those  contracts,  or 
the  United  States  must  embark  in  the  revolution  started 
by  the  indiscreet  action  of  the  legislature  thereof,  and 
uphold  the  private  corporations  in  the  ownership  and 
control  of  that  state  against  the  will  or  consent  of  the 
people. 

Should  the  congress  declare  the  transfer  of  the  po- 
lice powers  of  that  state  to  the  private  persons,  or  cor- 
porations, to  be  void,  and  by  law  direct  the  restoration 
of  the  republican  form  of  government,  for  the  state,  as 
congress  would  be  in  duty  bound  to  do ;  and  the  ex- 
ecutive proceed  to  execute  that  law  of  the  congress,  and 
the  private  person  claiming  to  own  the  whole  police 
power  of  that  state  should  apply  for  an  injunction  to  stop 
the  proceedings  to  oust  said  private  person  or  corporation 
of  the  management  and  control  thereof,  what  would  the 
supreme  court  of  the  United  States  do?  What  could 
the  supreme  court  do?  All  of  the  writs  issued  by  that 
court  run  in  the  name  of  the  president ;  so  that,  in 
the  case  here  hypothecated,  there  would  be  an  order 
issued  directly  by  the  president  requiring  the  private 
person  or  corporation  to  surrender  up  the  police  powers 
of  the  state  to  the  state  authorities,  and  the  mandate  of 
the  court  issued  in  the  name  of  the  president,  ordering 
said  private  person  or  corporation  not  to  surrender  to  the 
state  any  part  of  its  police  powers,  and  restraining  all 
persons  and  officers  from  interfering  with  the  free  exer- 
cise and  control  of  the  police  powers  of  that  state  by 
such  private  person  or  corporation. 

For,  if  it  was  proper  to  uphold  the  legislative  grant  as  to 
one  police  power,  it  would  be  equally  as  obligator}^  on 
that  court  to  uphold  legislative  grants  of  all  of  the  police 
powers  of  the  state  ;  and  if  it  was  lawful  to  uphold  such 


198  CONSTITUTION   OF   THE  UNITED   STATES. 

grants  before  the  congress  should  take  hold  of  the  mat- 
ter, it  would  be  lawful  to  uphold  the  grant  to  the  private 
person  or  corporation  even  against  the  power  of  the  con- 
gress ;  for  if  the  grants  were  lawful,  it  would  be  unlaw- 
ful for  congress  to  interfere  with  them  ;  and  it  would  be 
the  duty  of  the  court  to  protect  the  grantee  even  against 
the  powers  of  the  congress.  This  is  an  extreme  case, 
but  it  is  sometimes  necessary  to  resort  to  extreme  cases 
to  bring  a  question  rightfully  and  clearly  before  our  minds. 

Furthermore,  the  authority  of  a  legislature  to  sell  out 
its  power  or  ability  to  legislate  for  the  welfare  of  the  peo- 
ple, is  wholly  incompatible  with  a  republican  form  of 
government ;  hence,  by  recognizing  the  authority  of  the 
legislatures  of  the  states  to  barter  away,  by  irrevocable 
contracts,  the  power  to  legislate  for  the  people,  by  the  su- 
preme court,  of  itself,  destroys  the  republican  form  of 
government  of  the  states. 

The  language  of  the  paragraph  under  consideratoin  is : 
* '  No  state  shall  .  .  .  pass  any  bill  of  attainder,  ex 
post  facto  law  ;  or  law  impairmg  the  obligation  of  con- 
tracts.'" 

This  can  not  be  construed  as  a  prohibition  against  a 
state  impairing  its  own  contract,  for  it  is  a  well-known 
fact  that  a  state  may  repudiate  its  own  contracts,  and 
since  the  adoption  of  the  eleventh  article  of  amendment 
to  the  constitution  the  federal  courts  have  no  jurisdiction 
to  force  the  states  to  comply  with  contracts  or  obliga- 
tions, unless  they  be  obligations  with  a  sister  state. 

It  was  feared,  at  the  time  the  constitution  was  being 
constructed,  that  some  of  the  states  would  enact  laws 
obstructing  the  means  of  enforcing  the  collection  of  debts 
due  to  foreigners  (which  is  recognized  as  the  remedy  or 
obligation  of  contracts),  for  the  states  have  the  right  to 
control  the  jurisdiction  of  their  own  courts  and  minis- 
terial officers  connected  with  the  court.     No  state  could 


GRANT   OF   POLITICAL   POWERS,    ETC.  1 99 

change  any  contract  without  interfering  with  its  citizens 
right  to  make  contracts,  even  for  the  sale  of  the  products 
of  their  labor,  which  right  is  one  of  the  fundamental 
principles  of  freedom  ;  therefore,  no  fear  was  entertained 
at  that  time  of  any  states  attempting  to  change  any  con- 
tract, but  the  remedy  or  obligation  of  all  liabilities  being 
subject  to  the  control  of  the  states  ;  and  this  provision  of 
the  constitution  recognizing  that  right,  only  provides 
that  the  states  shall  not  impair  the  remedy  or  obligation 
of  contracts,  in  regulating  its  courts  and  the  jurisdiction 
thereof.  As  there  was  no  remedy,  or  obligation  of  any 
contract,  any  state  had  made,  and  none  likely  ever  to  be 
provided,  it  would  have  been  an  utterly  idle  display  to 
have  attempted  to  prevent  the  states  from  impairing  that 
which  had  no  existence,  and  was  not  likely  ever  to  have 
any  existence. 

But,  it  was  intimated  by  several  of  the  judges  of  the 
supreme  court,  in  the  first  case  in  which  that  court 
decided  that  private  corporations  chartered  by  the 
states  constituted  contracts  on  the  part  of  the  state 
(which  was  the  celebrated  Dartmouth  College  case) ,  that 
the  states  could  protect  themselves  by  reserving  in  the 
charter,  or  by  a  general  law,  the  right  to  amend  or  re- 
peal the  charter,  which  provision  would  enter  into  and 
form  a  part  of  the  contract,  as  accepted  by  the  corpora- 
tors, and  that  being  reserved  in  the  contract  would  be 
enforceable  in  law.  Since  then  all  of  the  states  have 
amended  their  respective  state  constitutions,  or  enacted  a 
general  statute  reserving  the  right  to  amend,  alter  or  re- 
peal all  grants  of  franchise  or  chartered  rights,  which  re- 
lieves the  states  of  the  greater  part  of  the  evils  arising 
out  of  that  interpretation  of  the  constitution. 

But  the  supreme  court  of  the  United  States,  by  obiter 
dictum,  expressed  in  the  argument  of  several  cases,  claim 
that  the  courts  of  last  resort  of  the  states,  are  estopped 


200  CONSTITUTION   OF   THE   UNITED   STATES. 

from  overruling  a  former  decision  construing  the  state 
law,  or  the  constitution  thereof,  if  in  the  opinion  of  the 
federal  courts  such  overruling  may  perchance  impair  the 
the  remedy  or  obligation.  The  former  decision  sus- 
taining rights  of  contracts  under  the  law  of  a  state 
ought  to  be  overruled,  if  erroneous.  The  courts  of 
the  state  and  the  ministerial  of&cers  connected  there- 
with, constitute  the  remedy  or  means  provided  by  law 
for  obliging  the  parties  to  any  contract  to  comply  there- 
with, and  all  contracts  that  may  be  made,  are  entered 
into  with  that  understanding.  Whenever  the  court 
of  last  resort,  whether  it  be  a  court  of  a  state  or  the 
supreme  court  of  the  United  States  overrules  any  judg- 
ment, it  amounts  to  a  decision  that  the  overruled  de- 
cision never  was  the  law  on  the  subject,  and  nobody 
could  acquire  any  right  by  reason  of  the  former  decision, 
unless  that  decision  announced  the  law  on  the  subject. 
Of  course  the  parties  to  the  former  case  would  be  es- 
topped by  it,  but  no  one  who  was  not  a  party  could  ac- 
quire any  right  under  it,  for  the  former  decision  was  con- 
trary to  the  lawful  obligations  of  the  party  sued  ;  no 
right  can  be  accorded  to  the  payee  wrongfully,  unless 
they  are  wrongfully  imposed  on  by  the  payer,  and  the 
payer  has  a  right  to  make  use  of  all  legal  defenses  in 
every  suit  that  may  be  brought  against  him.  But  the 
court  and  its  attachments  being  the  remedy  through 
which  the  parties  are  obliged  to  perform  their  con- 
tracts, because  that  court  decides  that  it  erred  in  a  for- 
mer decision,  can  not  be  held  to  be  an  impairing  of  the 
remedy,  but  rather  a  strengthening  of  the  remedy,  for 
the  payer  is  entitled  to  a  lawful  compliance  with  the  con- 
tract, as  well  as  the  payee  ;  hence,  the  only  question  the 
supreme  court  would  have  a  right  to  inquire  into  on  an 
appeal  of  the  case  of  that  sort,  is  whether  the  last  de- 
cision is  the  law  of  the  case,  and  it  has  no  right  to  con- 


GRANT   OF   POLITICAL   POWERS,    ETC.  20I 

sider  the  effect  of  the  former  case  at  all  unless  it  declares 
the  law  on  the  subject ;  in  that  event  the  supreme  court 
should  itself  declare  the  law  of  the  case. 

But  returning  to  the  prohibition  against  the  states  mak- 
ing laws  impairing  the  obligation  of  contracts,  the  remedy- 
suggested  by  some  of  the  judges  of  the  supreme  court  in 
the  Dartmouth  College  case,  to-wit :  of  the  states  reserv- 
ing the  right  to  alter,  amend  or  repeal  charters,  leaves 
serious  difficulties  in  the  way  of  the  states  exercising 
their  police  powers  fully,  and  they  must  necessarily  cause 
the  supreme  court  great  trouble  in  disposing  of  the 
various  questions  that  are  to  arise  under  that  ruling. 

The  right  to  repeal  the  charter  of  a  private  corporation 
involves  the  right  to  prohibit  the  use  of  the  corporate 
rights  thereof,  and  in  nearly  every  private  corporation 
the  tangible  property  connected  therewith  is  so  changed 
as  to  render  it  valueless  for  any  other  purpose ;  and  to 
take  away  from  the  corporation  the  use  of  the  corporate 
franchises  would  virtually  destroy  the  value  of  the 
tangible  property  connected  therewith,  consequently,  the 
right  not  only  to  impair,  but  to  absolutely  destroy,  the 
tangible  property  used  therewith  must  be  included  in  the 
right  to  repeal  the  charter  b}^  its  terms. 

The  constitution  of  every  state  contains  a  clause  pro- 
hibiting the  taking  of  private  property  for  public  use 
without  just  compensation  being  previously  paid,*  and 
by  the  fifth  amendment  of  the  federal  constitution 
the  United  States  is  prohibited  from  taking  private 
property  without  paying  for  it ;  consequently,  in  the 
absence  of  any  contract,  no  state  could  deprive  any  one 
of  his  private  property  without  previously  paying  just 
compensation  for  it,  even  if  it  should  be  needed  for 
public  uses.     But,  under  the  contract  to  repeal,  extremely 


*  See  Poores'  Constitution,  etc. 


202  CONSTITUTION   OF   THE   UNITED   STATES. 

valuable  property  may  be  destroyed  for  public  reasons 
without  paying  any  thing  for  it.  The  state  may  au- 
thorize the  corporators  to  change  their  tangible  propertj- 
80  as  to  be  used  in  conducting  the  corporate  business  at 
great  cost  at  one  session  of  its  legislature,  and  at  the 
session  of  the  next  legislature  it  may  destroy  it  all  with- 
out any  compensation  whatever.  Whereas,  without  such 
a  contract  no  state  could  enact  a  law  repealing  such  cor- 
poration without  repairing  all  damages  caused  thereby  ; 
for  the  repeal  of  the  charter  would  be  deemed  a  taking  for 
public  use  ;  hence  there  would  be  no  escape  from  paying 
for  the  property  so  taken  if  the  decision  in  the  Dart- 
m^outh  College  case  had  never  been  rendered. 

What  the  supreme  court  will  do  with  this  question  re- 
mains to  be  seen  ;  but  the  safest  and  easiest  way  out  of 
the  diflficulty  appears  to  be  the  overruling  of  the  Dart- 
mouth College  case  and  all  others  sustaining  it,  and  to 
restore  the  states  to  their  sovereign  right  to  repeal  all 
laws  and  charters,  whether  of  a  private  or  public  char- 
acter, that  may  appear  to  operate  against  the  public 
policy  of  the  state  ;  leaving  the  protection  of  the  citizens 
thereof  to  the  state  laws,  as  was  intended  by  the  makers 
of  the  constitution. 

Since  the  congress  was  prohibited  from  laying  a  tax 
on  any  article  exported  from  any  state,  it  was  necessary 
to  prohibit  the  state  from  laying  a  tax  on  exports  there- 
from, except  to  the  extent  it  may  be  necessary  to  defray 
the  expenses  of  its  inspection  laws.  But  why  the  states 
should  be  authorized  to  lay  such  export  taxes  as  the  con- 
gress may  consent  to,  provided  the  entire  surplus  over 
and  above  what  ma}^  be  necessary  to  defray  the  ex- 
penses of  the  inspection  laws  of  the  states  shall  be  held 
for  the  United  States,  and  paid  into  the  treasurj^  thereof, 
is  not  so  clear.  For  no  state  is  likely  to  tax  its  own 
citizens  for  the  benefit  of  the  United  States,  unless  the 


GRANT   OF   POLITICAL   POWSRS,    ETC.  205 

tax  would  greatly  redound  to  the  benefit  of  the  state  lay- 
ing the  tax. 

Furthermore,  no  state  can  lay  an  export  tax  further 
than  may  be  necessary  to  defray  the  expenses  of  its  in- 
spection laws  without  the  consent  of  the  congress,  and 
the  congress  is  expressly  prohibited  from  laying  a  tax  on 
articles  exported  from  any  state,  and  is  prohibited  from 
showing  a  preference  to  the  ports  of  one  state  over  those 
of  another  ;  therefore  should  the  congress  consent  that 
any  number  of  the  states,  less  than  all  of  them,  might 
lay  that  tax,  that  consent  would  amount  to  giving  a 
preference  to  the  ports  of  certain  states  over  the  ports  of 
other  states.  And  should  the  congress  consent  that  all 
of  the  states  might  lay  an  export  tax  on  articles  exported 
therefrom,  that  would  amount  to  the  congress  doing 
through  the  states  that  which  the  congress  is  expressly 
prohibited  from  doing  by  itself. 

This  reasoning  applies  with  equal  force  to  all  export 
taxes. 

Should  the  congress  resort  to  this  method  of  inducing 
the  states  to  tax  themselves  for  the  use  of  the  United 
States,  in  a  way  the  congress  is  prohibited  from  laying 
and  collecting  taxes,  the  states  respectively  will  have 
the  power  at  all  times  to  repeal  such  taxing  laws,  with- 
out consulting  the  congress  about  it.  Suppose,  after  the 
congress  had  given  its  consent  to  any  or  all  of  the  states 
to  procure  and  own  ships  of  war  in  times  of  peace,  and 
after  the  states  had  procured  ships  of  war  the  congress 
should  conclude  that  it  had  acted  unwisely,  and  should 
conclude  to  withdraw  its  assent  therefrom,  and  the  state 
or  states  that  owned  ships  of  war  desired  to  continue  to 
maintain  them,  what  proceedings  can  the  United  States 
adopt  to  force  a  state  to  give  them  up?     The  duty  of 


204  CONSTITUTION   OF   THE   UNITED   STATES. 

the  United  States  to  maintain  itself,  and  to  protect  all  of 
the  states  in  their  equal  privileges  and  rights  in  the  union, 
is  sufficient  to  justify  the  United  States  in  coercing  any 
state  to  give  up  ships  of  war. 

For,  if  one  state  had  ships  of  war  to  the  exclusion  of 
other  states,  that  fact  would  be  regarded  with  jealousy 
by  the  other  states,  and  might  be  reasonably  looked  on 
as  a  menace  against  them. 

But  to  cause  that  state  to  dispose  of  its  ships,  would 
be  equivalent  to  taking  such  ships  for  public  use,  and  the 
United  States  would  be  obliged  to  pay  for  them. 

The  prohibition  against  the  state  keeping  troops  in 
time  of  peace,  contained  in  this  paragraph,  has  been  so 
modified  by  the  second  article  of  amendment  to  the  con- 
stitution as  to  amount  to  nothing  more  than  a  prohibition 
against  the  states  keeping  standing  armies,  leaving  the 
states  free  to  maintain  any  character  of  a  military  force 
they  may  choose  to  keep. 

Since  the  United  States  are  required  to  protect  all  of 
the  states  alike  against  each  other,  as  well  as  against  all 
foreign  powers,  no  state  ought  to  be  authorized  to  enter 
into  any  agreement  or  compact  with  another  state,  or 
with  a  foreign  power,  or  engage  in  a  war,  unless  actu- 
ally invaded,  or  be  in  such  imminent  danger  as  will  not 
admit  of  delay. 

To  enumerate  all  of  the  subjects  over  which  the  states 
have  concurrent  jurisdiction  with  the  United  States, 
would  involve  a  discussion  of  privileges  and  immunities 
not  desired  to  be  entered  into  under  the  plan  of  this  re- 
view. I  suppose,  however,  that  it  will  be  conceded  that 
the  states  have  jurisdiction  of  all  necessary  powers  to  con- 
duct the  governments  thereof,  except  such  as  are  ex- 
pressly prohibited  to  them,  including  the  powers  vested 
in  the  congress,  until  the  congress  shall  divest  the  states 
thereof,  by  assuming  control  of  the  same. 


ORGANIZATION    OF   THE    EXECUTIVE.  205 

CHAPTER  YII. 

ORGANIZATION   OF   THE   EXECUTIVE. 


Article  II. 

Sec.  I ,  Par,  i .  "  The  executive  power  shall  be  vested 
in  a  President  of  the  United  States  of  America.  He 
shall  hold  his  office  during  the  term  of  four  years,  and, 
together  with  the  vice-president,  chosen  for  the  same 
term,  be  elected  as  follows  : ' ' 

Par.  2.  "Each  state  shall  appoint,  in  such  manner  as 
the  legislature  thereof  may  direct,  a  number  of  electors 
equal  to  the  whole  number  of  senators  and  representa- 
tives to  which  the  state  may  be  entitled  in  the  congress  ; 
but  no  senator  or  representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be 
appointed  an  elector." 

Par.  3.  ' '  The  electors  shall  meet  in  their  respective 
states,  and  vote  by  ballot  for  two  persons,  of  whom  one 
at  least  shall  not  be  an  inhabitant  of  the  same  state  with 
themselves.  And  they  shall  make  a  list  of  all  the  per- 
sons voted  for,  and  of  the  number  of  votes  for  each ; 
which  list  they  shall  sign  and  certify,  and  transmit  sealed 
to  the  seat  of  the  government  of  the  United  States,  di- 
rected to  the  president  of  the  senate.  The  president  of 
the  senate  shall,  in  the  presence  of  the  senate  and  house 
of  representatives,  open  all  the  certificates,  and  the  vote 
shall  then  be  counted.  The  person  having  the  greatest 
number  of  votes  shall  be  the  president,  if  such  number 
be  a  majority  of  the  whole  number  of  electors  appointed  ; 
and  if  there  be  more  than  one  who  have  such  majority, 
and  have  an  equal  number  of  votes,  then  the  house  of 


2o6  CONSTITUTION   OF   THE  UNITED   STATES. 

representatives  shall  immediately  choose,  by  ballot,  one 
of  them  for  president ;  and  if  no  person  have  a  majority, 
then  from  the  five  highest  on  the  list  the  said  house  shall, 
in  like  manner,  choose  the  president.  But  in  chosing 
the  president  the  vote  shall  be  taken  by  states,  the  repre- 
sentation from  each  state  having  one  vote ;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members  from 
two-thirds  of  the  states,  and  a  majority  of  all  of  the 
states  shall  be  necessary  to  a  choice.  In  every  case,  after 
the  choice  of  the  president,  the  person  having  the  great- 
est number  of  votes  of  the  electors  shall  be  the  vice- 
president.  But  if  there  should  remain  two  or  more  who 
have  equal  votes,  the  senate  shall  choose  from  them  by 
ballot  the  vice-president. 

' '  The  congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  give  their 
votes ;  which  day  shall  be  the  same  throughout  the 
United  States. 

' '  No  person  except  a  natural  born  citizen,  or  a  citizen  of 
the  United  States  at  the  time  of  the  adoption  of  this  con- 
stitution, shall  be  eligible  to  the  office  of  president  ; 
neither  shall  any  person  be  eligible  to  that  office  who 
shall  not  have  attained  to  the  age  of  thirty-five  years, 
and  been  fourteen  years  a  resident  within  the  United 
States. 

' '  In  case  of  the  removal  of  the  president  from  office, 
or  of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  de- 
volve on  the  vice-president,  and  the  congress  may  bylaw 
provide  for  the  case  of  removal,  death,  resignation,  or  in- 
ability, both  of  the  president  and  vice-president,  declar- 
ing what  officer  shall  then  act  as  president ;  and  such 
officer  shall  act  accordingly,  until  the  disability  be  re- 
moved, or  a  president  shall  be  elected. 

"The  president  shall,  at  stated  times,  receive  for  his 


ORGAXIZATION   OF  THE   EXECUTIVE.  207 

services  a  stated  compeusation,  which  shall  neither  be  in- 
creased nor  diminished  during  the  period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within 
that  period  any  other  emoluments  from  the  United  States, 
or  any  of  them. 

"Before  he  enter  on  the  execution  of  his  oflBce  he 
shall  take  the  following  oath  or  aflSrmation :  '/  do  sol- 
emnly swear  (or  aflSrm)  that  I  will  faithfully  execute  the 
office  of  Presideyit  of  the  Uyiitcd  States,  and  will,  to  the  best 
of  my  ability,  preserve,  protect  and  defend  the  Constitidioii 
of  the  United  States. '  ' ' 

This  is  the  original  plan  of  electing  the  president  and 
vice-president  of  the  United  States.  But  Mr.  Jefferson 
and  Mr.  Burr  were  of  the  same  school  of  politics,  and 
they  were  both  voted  for  by  the  presidential  electors  in 
1800,  and  they  got  the  same  electoral  vote,  which  was  a 
majority  of  all  of  the  electoral  votes ;  therefore,  it  de- 
volved on  the  house  of  representatives  to  decide  which  of 
them  should  be  president.  The  house  of  representatives 
voting  by  states,  ayid  not  individually,  there  were  as  many 
states  for  the  one  as  for  the  other,  and  it  so  continued 
for  a  great  while  ;  and  it  was  seriously  feared  that  the 
house  of  representatives  would  not  come  to  an  agree- 
ment. 

Had  the  house  of  representatives  failed  to  decide  be- 
tween the  two  candidates,  the  election  would  have  de- 
volved on  the  senate  to  select  the  president ;  as  the  sen- 
ate was  to  elect  a  vice-president  before  the  4th  of  March 
following,  it  would  then  have  been  the  duty  of  the  vice- 
president  to  assume  the  duties  of  president,  and  the 
senate  would  have  to  elect  a  president  of  the  senate  pjo 
tempore.  But  this  mode  of  electing  the  president  would 
have  precluded  the  people  from  any  participation  in  the 
selection  of  president ;  and,  to  avoid   a  repetition  of  so 


2o8  CONSTITUTION   OF   THE   UNITED   STATES. 

embarrassing  a-  contingency,  the  eighth  congress,  on  the 
1 2th  of  December,  1803,  proposed  an  amendment,  in  lieu 
of  the  third  paragraph  of  the  first  section  of  the  second 
article  of  the  original  constitution,  which  was  declared, 
by  proclamation  by  the  secretar>'  of  state,  to  have  been 
adopted  by  a  sufficient  number  of  the  states  to  make  it  a 
part  of  the  constitution. 

TWEIyFTH   AMENDMENT, 

Which  Is  as  follows  :  ' '  The  electors  shall  meet  in  their 
respective  states  and  vote  by  ballot  for  president  and  vice- 
president,  one  of  whom,  at  least,  shall  not  be  an  inhabit- 
ant of  the  same  state  with  themselves ;  they  shall  name 
in  their  ballot  the  person  voted  for  as  president,  and  in 
distinct  ballots  the  person  voted  for  as  vice-president,  and 
they  shall  make  distinct  lists  of  all  persons  voted  for  as 
president,  and  of  all  persons  voted  for  as  vice-president, 
and  of  the  number  of  votes  for  each,  which  list  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of 
government  of  the  United  States,  directed  to  the  presi- 
dent of  the  senate  ;  the  president  of  the  senate  shall,  in 
the  presence  of  the  senate  and  house  of  representatives, 
open  all  the  certificates,  and  the  vote  shall  then  be 
counted ;  the  person  having  the  greatest  number  of  votes 
for  president  shall  be  the  president,  if  such  number  be  a  ma- 
jority of  the  whole  number  of  electors  appointed,  and  if  no 
person  have  such  majority,  then,  from  the  persons  having 
the  highest  numbers,  not  exceeding  three,  on  the  list  of 
those  voted  for  as  president,  the  house  of  representatives 
shall  choose  immediately,  by  ballot,  the  president.  But,  in 
choosing  the  president,  the  votes  shall  be  taken  by  states, 
the  representatives  from  each  state  having  one  vote.  A 
quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  states,  and  a  majority  of 
all  of  the  states  shall  be  necessary  to  a  choice.     And  if 


ORGANIZATION   OF   THE   EXECUTIVE.  209 

the  house  of  representatives  shall  not  choose  a  president 
whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  4th  day  of  March  next  following ;  then  the 
vice-president  shall  act  as  president,  as  in  the  case  of  the 
death  or  other  constitutional  disability  of  the  president. 
The  person  having  the  greatest  number  of  votes  as  vice- 
president  shall  be  the  vice-president,  if  such  number  be 
a  majority  of  the  whole  number  of  electors  appointed ; 
and  if  no  person  have  a  majority,  then,  from  the  two 
highest  number  on  the  list,  the  senate  shall  choose  the 
vice-president.  A  quorum  for  that  purpose  shall  consist 
of  two-thirds  of  the  whole  number  of  senators,  and  a 
majority  of  the  whole  number  shall  be  necessary'  to  a 
choice.  But  no  person  constitutionally  ineligible  to  the 
office  of  president  shall  be  eligible  to  that  of  vice-presi- 
dent of  the  United  States." 

It  wnll  be  obser^^ed  that  by  the  original  provision  no 
qualifications  were  expressly  provided  for  the  vice-presi- 
dent, but  that  was  not  necessary,  for  no  one  could  be 
voted  for  as  vice-president,  both  being  voted  for  as  presi- 
dent ;  therefore  the  same  qualifications  were  required 
of  persons  to  be  vice-president  as  were  required  for 
president. 

But  when  persons  were  authorized  to  be  voted  for  and 
selected  to  the  vice-presidency,  it  became  necessarj-  to 
prescribe  qualifications  for  that  office. 

It  will  be  borne  in  mind  that  each  state  appoints  a 
number  of  electors,  equal  to  the  number  of  senators  and 
representatives  it  is  entitled  to  in  the  congress,  in  such 
manner  as  the  legislature  thereof  may  provide.  These 
electors  are  required  to  meet  in  their  own  state  and  vote 
by  ballot  for  president  and  vice-president  and  certify 
that  vote  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  president  of  the  senate  thereof. 

So  that  the  electors  to  choose  a  president  and  vice- 


2IO  CONSTITUTION   OF   THE  UNITED   STATES. 

president  are  elected  by  the  voters  of  the  states,  taken- 
within  the  state,  and  they  perform  the  function  of  their 
office  wholly  within  their  own  state,  and  are  commis- 
sioned to  their  office  by  authority  of  their  own  state  ; 
consequently,  they  are  officers  of  their  own  state.  They 
are,  however,  limited  in  casting  their  votes  to  but  one 
person  who  resides  in  the  same  state  with  themselves  ; 
that  is  they  may  vote  for  a  person  for  president  residing 
in  their  own  state,  provided  they  vote  for  a  person  residing 
in  some  other  state  for  vice-president ;  or  they  may  re- 
verse it,  and  vote  for  one  of  the  citizens  of  their  own 
state  for  vice-president,  provided  they  vote  for  a  citizen 
of  some  other  state  for  president. 

This  provision  is  thought  to  be  sufficient  to  guard 
against  electing  a  president  and  vice-president  from  the 
same  state  ;  but  it  is  addressed  to  the  electors  only,  and 
is  not  made  a  disqualification  to  hold  the  office  of  either 
president  or  vice-president.  It  being  no  disqualification 
where  the  certificate  shows  the  vote  of  any  state  to  have 
been  taken  in  all  other  respects  according  to  law,  ought 
the  vote  of  such  state  to  be  rejected,  particularly  if  re- 
jecting that  vote  would  throw  the  election  in  the  house 
of  representatives  and  change  the  election  from  one 
party  to  another.  It  must  be  conceded  that  the  congress 
must  refuse  to  count  the  vote  of  a  state  in  which  the 
electors  vote  for  persons  for  president  and  for  \'ice-presi- 
dent  both  of  whom  reside  in  the  same  state  with  them- 
selves, unless  both  houses  concur  in  counting  it. 

The  language  of  the  constitution  is  :  "  The  certificates- 
shall  be  opened  by  the  president  of  the  senate  in  the 
presence  of  the  senate  and  house  of  representatives  and 
the  votes  shall  then  be  counted."  This  can  not  be  con- 
strued to  require  the  counting  of  votes,  unless  they  were 
legally  cast.  No  one  will  contend  that,  if  by  counting 
the  votes,  it  would  elect  the  Prince  of  Wales,   or  any 


ORGANIZATION   OF  THB   EXECUTIVE.  211 

foreign  prince,  or  one  who  was  foreign  born,  or  less  than 
thirty-five  years  of  age,  that  the  votes  must  be  counted 
however  clearly  the  certificates  may  show  on  their  face 
that  the  vote  was  taken  and  certified  to  in  ever>'  respect 
according  to  law.  But,  as  before  shown,  the  congress 
being  divided  into  two  houses,  and  each  being  required 
to  act  separately  in  enacting  laws,  and  in  doing  all  other 
things,  except  wherein  they  may  be  expressly  authorized 
to  act  together,  the  vote  of  no  state  appearing  on  the 
face  thereof  to  be  defective,  or  informal,  can  be  counted, 
unless  each  house  shall  by  separate  act  concur  in  count- 
ing the  vote.  Nor  can  the  vote  of  any  state  appearing 
on  the  face  of  the  certificate  thereof,  to  be  formal  and 
valid,  be  rejected,  unless  the  two  houses  shall  by  separate 
acts  concur  in  rejecting  it.  The  vote  of  every  state  ap- 
pearing to  be  formal  must  be  counted,  unless  the  two 
houses  agree  by  separate  action  not  to  count  it.  And, 
on  the  contrary,  the  vote  of  no  state  appearing  on  the 
face  of  the  certificate  thereof  to  be  defective,  can  lawfully 
be  counted,  unless  the  two  houses  by  separate  action  con- 
cur in  counting  it. 

But  the  constitutional  provision  is  silent  as  to  how  the 
counting  of  a  defectively  certified  vote,  or  votes  appear- 
ing on  the  face  of  the  certificate  thereof  to  be  formal, 
shall  be  rejected  or  counted. 

Any  motion  to  reject  or  count  a  vote  must  be  made 
after  the  counting  begins  and  before  it  is  concluded,  for 
if  it  be  delayed  until  the  vote  shall  have  been  counted,  it 
will  be  too  late,  as  the  counting  of  the  vote  amounts  to  a 
decision  by  the  congress,  from  which  there  is  no  appeal, 
nor  can  the  congress  itself  set  aside  that  judgment  and 
make  a  new  count  or  change  the  result  of  the  judgment 
by  the  first  counting  of  the  vote.  The  counting  of  the 
vote  must  be  in  the  presence  of  the  .senate  and  house  of 
representatives,  and  when  the  votes  shall  be  so  counted 


212  CONSTITUTION   OF   THE   UNITED   STATES. 

it  must  be  final ;  and  the  congress  must  declare  the  result 
thereof,  which  constitutes  a  final  and  irrevocable  judgment 
of  the  congress,  and  there  is  no  authority  for  the  congress 
itself  to  reconsider  that  count. 

It  being  absolutely  necessary  to  vest  somewhere  juris- 
diction to  determine  who  are  elected  president  and  vice- 
president,  the  most  appropriate  tribunal  to  execute  so 
delicate  a  trust,  is  the  two  houses  of  congress,  one  house 
representing  the  political  organizations  of  the  states,  and 
the  other  the  people  thereof.  Thus  the  congress  is 
wisely  converted  into  a  court  with  exclusive  jurisdiction 
to  determine  this  grave  question. 

Should  the  congress  adopt  a  rule  requiring  all  motions 
to  be  in  writing  and  in  form  of  charges  and  specifications, 
and  upon  the  filing  of  a  motion  to  count  a  defectively 
certified  vote,  or  to  reject  a  properly  certified  vote,  the 
two  houses  should  adjourn  and  immediately  convene  in 
their  respective  houses  and  consider  the  same,  or  the 
congress  might  call  through  the  list  of  the  states  to  ascer- 
tain whether  the  vote  of  any  other  state  was  objected  to 
or  desired  to  be  counted,  notwithstanding  the  informality 
of  the  certificate,  and  vote,  and  the  two  houses  then  ad- 
journ and  repair  to  their  respective  houses.  And  as  soon 
as  all  of  the  charges  and  specifications  shall  have  been 
disposed  of  by  each  house  separately,  the  two  houses 
should  again  come  together  and  proceed  with  the  count 
of  the  votes  as  decided  upon  in  the  respective  houses  and 
pronounce  their  judgment  thereof.  While  the  congress 
has  exclusive  final  jurisdiction  to  determine  whether  to 
count  the  vote  of  a  state  upon  the  face  of  the  certificate  of 
the  vote  thereof,  it  has  no  authority  to  inquire  into  the  elec- 
tion of  the  presidential  electors  of  the  several  states  fur- 
ther than  to  inquire  whether  the  elections  were  held  at 
the  time  prescribed  by  the  act  of  congress.  For  the  con- 
stitution provides  that : 


ORGANIZATION   OF   THE   EXECUTIVE.  213 

' '  Each  state  shall  appoint  in  such  manner  as  the  legis- 
lature thereof  may  direct  a  number  of  electors  equal  to 
the  whole  number  of  senators  and  representatives  to 
which  the  state  may  be  entitled  in  the  congress  ;  but  no 
senator  or  representative  or  person  holding  an  oiB&ce  of 
trust  or  profit  under  the  United  States  shall  be  appointed 
an  elector. 

' '  The  congress  may  determine  the  time  of  choosing 
the  electors  and  the  day  on  which  they  shall  give  their 
votes,  which  shall  be  the  same  throughout  the  United 
States." 

The  congress  has  provided  by  law  that  the  electors 
shall  be  elected  on  the  Tuesday  after  the  first  Monday  in 
November  in  each  state,  and  that  the  electors  shall  meet 
at  the  seat  of  government  of  their  respective  states  on  the 
second  Monday  in  the  January-  following  their  election, 
and  then  and  there  cast  their  votes  for  president  and  vice- 
president,  and  this  is  all  the  power  the  congress  has  over 
the  subject  under  the  constitution  ;  but,  having  jurisdic- 
tion to  enact  this  law,  it  has  jurisdiction  to  determine 
whether  it  has  been  complied  with ,  but  can  go  no  further 
in  its  inquiry  about  choosing  the  electors.  For  the 
mode  and  manner  of  appointing  the  presidential  electors 
is  expressly  vested  in  the  states  respectively,  and  neither 
the  mode  nor  the  manner  of  electing  them  can  be  inter- 
fered with  by  the  congress  without  usurping  power 
vested  in  the  states  by  the  plain  letter  of  the  constitu- 
tion. 

The  congress  is,  therefore,  bound  to  accept  the  cer- 
tificate of  the  state  authorities  as  to  the  regularity  and 
validity  of  the  choosing  of  the  presidential  electors. 

However,  in  1876,  the  congress  decided  that  it  had  the 
right  to  go  behind  the  returns  and  certificates  of  the  state 
ofl&cials,  and  to  declare  a  different  set  of  electors  had  been 
chosen  by  the  popular  vote  of  the  state  than  those  certi- 


214  CONSTITUTION   OP   THE   UNITED   STATES. 

fied  to  have  been  elected  by  the  executive  authority  of 
the  state.  But  that  action  of  that  congress  was  con- 
demned by  the  people  at  the  ballot-box  at  the  next  ensu- 
ing election  by  electing  a  congress  with  a  decided  majority 
on  the  other  side  of  the  political  question. 

Hence,  as  the  congress  has  no  authority  to  interpret 
the  constitution  (as  will  be  shown  in  considering  the 
judiciary  department),  the  act  of  that  congress  in  going 
behind  the  returns  and  certificates  of  the  state  officials 
can  have  no  effect  or  influence  on  the  powers  of  congress 
in  the  future,  even  as  precedent  to  be  followed. 

The  congress,  however,  if  both  houses  could  be  in- 
duced to  concur  therein,  could  refuse  to  count  the  vote 
of  a  state,  and  in  that  way  defeat  an  election.  Or, 
should  both  houses  of  congress  concur  in  so  doing,  may 
count  the  vote  of  a  state  defectively  certified  to,  or  not 
given  at  the  time  prescribed  by  the  act  of  congress  ;  but 
the  congress  has  no  power  to  count  the  vote  of  a  state 
for  any  one,  unless  that  state  actually  voted  for  such 
person. 

Consequently,  the  congress  may  count  out  those  who 
may  have  been  elected,  and  throw  the  election  into  the 
house  of  representatives.  But  it  can  in  no  event  consti- 
tutionally count  persons  into  the  offices  of  president  and 
vice-president,  who  were  not  elected  thereto. 

The  congress  being  itself  elected  every  two  years,  is 
not  likely  to  resort  to  such  extreme  measures  as  to  count 
out  one  elected  by  the  people,  unless  under  a  high  state 
of  political  excitement.  And  such  excitements  usually 
arise  from  efforts  on  the  part  of  one  political  party 
to  change  the  policy  of  the  government,  and  an  equally 
zealous  effort  of  the  other  party  to  hold  on  to  the  exist- 
ing policy. 

The  probability  is,  that  the  party  that  elects  the 
president  and  vice-president  will  also  elect  the  new  house 


ORGANIZATION    OF    THE    EXECUTIVE.  215 

of  representatives.  But  the  couutiug  will  have  to  be  by 
the  congress  elected  the  two  years  before  the  election  of 
the  president  and  vice-president,  and  the  senators  to  act 
on  the  counting  will  all  have  been  elected  before  the 
president  and  vice-president  whose  election  is  to  be  passed 
on  by  the  congress. 

Should  the  congress  called  on  to  count  the  votes,  be 
corrupt  enough  to  refuse  to  count  the  votes  fairly,  and 
throw  the  election  in  the  house  of  representatives,  where 
the  vote  would  have  to  be  taken  by  states,  it  might  be  that 
enough  of  the  representatives  of  the  smaller  states  would 
follow  the  expressed  will  of  the  people  thereof  to  still  elect 
the  same  person  that  had  been  elected  by  the  people  of  the 
United  States.  However,  if  they  should  continue  subject 
to  the  political  lash,  and  vote  to  defeat  the  will  of  the 
people,  there  is  no  remedy  as  to  that  decision.  But  the 
people  would  hold  their  members  in  each  house  in  re- 
membrance, and  having  been  misrepresented  by  them 
once,  would  not  give  them  another  opportunity. 

Unless  a  majority  of  the  states  should  be  with  the  de- 
feated party,  the  rejection  of  enough  of  the  electoral  vote 
to  throw  the  election  in  the  house  of  representatives  would 
be  an  idle  act,  and  would  not  likely  be  resorted  to,  as  it 
could  not  avail  anything  to  the  party  resorting  to  such 
extreme  .schemes  as  to  throw  out  votes  without  cause. 
Therefore,  no  serious  evils  need  be  apprehended  from  that 
source.  Since  the  custom  of  buying  the  vote  of  states  ap- 
peared in  the  presidential  election,  the  wisdom  of  author- 
izing the  congress  to  fix  the  same  day  for  choosing  the  elec- 
tors, and  the  same  day  for  the  electors  to  meet  at  the  seat 
of  government  of  their  own  state,  to  vote  for  president  and 
vice-president  throughout  the  United  States,  has  become 
manifest ;  for  it  is  much  more  difficult  to  buy  the  vote  of 
states  when  the  elections  are  held  on  the  same  day  in 
each  of  the  states,  as  the  voters  who  were  usually  carried 


2l6  CONSTITUTION   OF  THE   UNITED  STATES. 

from  one  state  to  another  to  vote  before  this  act  of  con- 
gress, are  required  to  stay  in  their  own  states  and  vote 
to  aid  in  carrying  their  own  election  ;  and  as  the  juris- 
diction of  no  state  extends  beyond  its  boundaries,  and 
the  states  are  prohibited  from  forming  any  agreements 
or  compacts  with  each  other,  the  congress  is  the  only 
authority  that  has  jurisdiction  to  enact  such  a  law,  and 
the  United  States  alone  can  enforce  it. 

Authority  in  congress  to  provide  for  cases  in  which 
neither  the  president  nor  the  vice-president  can  act,  is 
manifestly  to  avoid  the  possibility  of  a  vacancy  in  the 
ofiSce  of  the  chief  executive  of  the  United  States. 

With  no  provision  in  the  constitution  extending  further 
than  the  vice-president,  a  vacancy  might  occur  during 
a  session  of  the  congress,  and  as  no  bill  can  become  a 
law  without  the  approval  of  the  president,  or  being  passed 
over  his  veto,  a  vacancy  in  the  oflBce  of  president  would 
stop  the  running  of  the  governmental  machinery  and  all 
possible  legislation. 

The  congress,  being  impressed  with  what  a  dire  ca- 
lamity a  vacancy  in  that  office  would  be,  at  an  early  day 
discharged  that  duty,  and  provided  that  in  the  absence 
of  the  president  and  the  vice-president,  or  the  inabil- 
ity of  either  one  of  them  to  act,  the  duties  of  the 
office  of  president  shall  first  devolve  on  the  president  of 
the  senate  ;  if  there  be  none,  then  on  the  speaker  of  the 
house  of  representatives  to  act  until  the  inability  be 
removed,  or  a  president  be  elected. 

Sec.  147.  "  Whenever  the  offices  of  president  and  vice- 
president  both  become  vacant,  the  secretary  of  state  shall 
forthwith  cause  a  notification  thereof  to  be  made  to  the 
executive  of  every  state,  and  shall  also  cause  the  same 
to  be  published  in  at  least  one  of  the  newspapers  printed 
in  each  state. ' ' 

Sec.  148.   "  The  notification  shall  specify  that  electors 


ORGANIZATION   OF   THE   EXECUTIVE.  217 

of  a  president  and  vice-president  of  the  United  States 
shall  be  appointed  or  chosen  in  the  several  states  as 
follows : 

"  I  St.  If  there  shall  be  the  space  of  two  months  yet 
to  ensue  between  the  date  of  such  notification  and  the 
first  Wednesday  in  December  next  ensuing,  such  notifica- 
tion shall  specify  that  the  electors  shall  be  appointed  or 
chosen  within  thirty-four  days  preceding  such  first 
Wednesday  in  December. 

"2d.  If  there  shall  not  be  the  space  of  two  months 
between  the  date  of  such  notification  and  such  first 
Wednesday  in  December,  and  if  the  term  for  which  the 
president  and  vice-president  last  in  ofiice  were  elected 
will  not  expire  on  the  third  day  of  March  next  ensuing, 
the  notification  shall  specify  that  the  electors  shall  be 
appointed  within  thirty-four  days  preceding  the  first 
Wednesday  in  December  in  the  year  next  ensuing.  But 
if  there  shall  not  be  the  space  of  two  months  between 
the  date  of  such  notification  and  the  first  Wednesday  in 
December  then  next  ensuing,  and  if  the  term  for  which 
the  president  and  vice-president  last  in  office  were  elected 
will  expire  on  the  third  day  of  March  next  ensuing,  the 
notification  shall  not  specify  that  electors  are  to  be  ap- 
pointed or  chosen." 

Sec.  149.  •'  Electors  appointed  or  chosen  upon  the  noti- 
fication prescribed  by  the  preceding  section  shall  meet  and 
give  their  votes  upon  the  first  Wednesday  in  December 
specified  in  the  notification." 

Sec.  150.  "The  provisions  of  this  title  relating  to  the 
quadrennial  election  of  president  and  vice-president,  shall 
apply  with  respect  to  any  election  to  fill  vacancies  in  the 
office  of  president  and  vice-president,  held  upon  a  notifi- 
cation given  when  both  offices  become  vacant. ' '  * 


*  Revised  Statutes  of  United  States,  Title  3. 


2l8  CONSTITUTION    OP    THE   UNITED   STATES. 

The  former  quadrennial  elections  of  president  and  vice- 
president  required  the  electors  to  meet  in  their  respective 
states  on  the  first  Wednesday  in  December  ensuing  the 
choosing  of  the  electors  to  cast  their  votes.  But  the  law 
now  requires  them  to  meet  on  the  second  Monday  in 
January,  following  the  election  of  the  electors,  to  cast 
their  vote  for  president  and  vice-president.  Whether  the 
change  in  the  time  for  the  electors  to  meet  to  cast  their 
vote  will  have  any  effect  on  the  foregoing  provision,  is 
not  necessary  to  inquire  into  in  this  review. 

The  salary  of  the  president  being  subject  to  no  increase 
or  diminution  during  his  term  of  office,  was  thought  suf- 
fient  and  proper  to  avoid  any  bargaining  between  the 
president  and  congress,  and  to  relieve  the  president  from 
the  control  of  the  congress  ;  but  the  modern  use  of  the  ap- 
pointing power  of  the  president,  to  control  legislation, 
shows  that  it  is  inadequate  to  produce  so  desirable  an 
effect,  though  it  relieves  the  president  of  any  inducement 
to  court  the  congress  on  account  of  his  salary.  It  also 
removes  every  means  of  forcing  the  president  to  dis- 
charge his  duty,  except  in  so  far  as  he  may  feel  bound 
by  his  oath,  or  fear  of  impeachment  (and  it  is  puerile 
to  expect  to  bind  ambitious  officials  by  oaths),  and  as 
hereinbefore  shown  he  may  so  use  his  appointing  power 
as  to  defeat  an  impeachment.  Hence,  the  congress 
should  be  cautious  about  augmenting  his  power  by  in- 
creasing his  salary,  particularly,  as  he  can  excuse  him- 
self for  vetoing  a  reduction,  on  the  plea  of  delicacy,  as  it 
could  not  apply  to  himself,  therefore  it  will  be  ex- 
tremely difficult  to  reduce  the  same.  The  president  should 
be  paid  an  amount  adequate  to  maintain  the  dignity  of  his 
office,  and  no  objection  can  be  made  to  the  salary,  however 
high  it  may  be,  provided  it  is  not  put  so  high  as  to  attract 
venal  aspirants  to  seek  the  office  for  the  pay  it  carries,  who 
will  anticipate  it  to  bribe  his  way  into  that  office. 


ORGANIZATION   OF   THE   EXECUTIVE.  219 

Sec.  2.  "  The  president  shall  be  commander  in  chief  of 
the  army  and  navy  of  the  United  States,  and  of  the 
militia  of  the  several  states  when  called  into  the  actual 
service  of  the  United  States  ;  he  may  require  the  opinion, 
in  writing,  of  the  principal  officer  in  each  of  the  execu- 
tive departments,  upon  any  sul^ject  relating  to  the  duties 
of  their  respective  ofl&ces,  and  he  shall  have  power  to 
grant  reprieves  and  pardons  for  offenses  against  the 
United  States,  except  in  cases  of  impeachment. 

' '  He  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  senate,  to  make  treaties,  provided  two- 
thirds  of  the  senators  present  concur  ;  and  he  shall  nomi- 
nate, and  by  and  with  the  advice  and  consent  of  the 
senate,  shall  appoint  ambassadors,  other  public  ministers 
and  consuls,  judges  of  the  supreme  court,  and  all  other 
officers  of  the  United  States,  whose  appointments  are  not 
herein  otheru'ise  provided  for,  and  which  shall  be  estab- 
lished bj'  law.  But  the  congress  may  by  law  vest  the  ap- 
pointment of  such  inferior  officers,  as  they  think  proper, 
in  the  president  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments. 

"The  president  shall  have  power  to  fill  up  all  vacan- 
cies that  may  happen  during  the  recess  of  the  senate,  by 
granting  commissions  which  shall  expire  at  the  end  of 
their  next  session." 

Sec.  3.  "  He  shall  from  time  to  time  give  to  the  con- 
gress information  of  the  state  of  the  union,  and  recom- 
mend to  their  consideration  such  measures  as  he  shall  judge 
necessar>^  and  expedient  ;  he  may,  on  extraordinary  occa- 
sions, convene  both  houses  of  congress,  or  either  of  them, 
and  in  case  of  disagreement  between  them,  ^vith  respect 
to  the  time  of  adjournment,  he  may  adjourn  them  to  such 
time  as  he  shall  think  proper  ;  he  shall  receive  ambassa- 
dors and  other  pubHc  ministers  ;  he  shall  take  care  that 


220  CONSTITUTION   OF  THE   UNITED   STATES. 

the  laws  be  faithfully  executed,  and  shall  commission  all 
the  officers  of  the  United  States." 

Sec.  4.  "The  president,  vice-president,  and  all  civil 
oflScers  of  the  United  States  shall  be  removed  from  ofiSce 
on  impeachment  for,  and  conviction  of,  treason,  bribery, 
or  other  high  crimes  and  misdemeanors. ' ' 

The  making  of  the  president  commander-in-chief  of 
the  army  and  navy  of  the  United  States,  and  of  the 
militia  of  the  several  states  when  called  into  actual  serv- 
ice of  the  United  States,  does  not  mean  that  he  is  to 
command  either  in  person ;  since,  as  commander-in- 
chief  of  both  the  army  and  navy  practically  precludes 
the  president  from  commanding  either  of  said  arms  of 
war  in  person,  this  section  could  not  have  been  in- 
tended to  vest  him  with  that  authority,  hence  the  presi- 
dent cannot  command  either  the  army  or  navy  in 
person  while  in  active  service  without  violating  this 
section. 

The  co-operation  of  the  army  and  navy  must  be 
obtainable  to  enable  a  nation  to  use  all  of  its  forces  in  its 
wars  ;  this  co-operation  requires  that  both  of  these 
arms  of  war  be  subject  to  the  control  of  one  common  au- 
thority, to  make  reports  to,  and  receive  orders  from. 
The  president  is  vested  with  this  common  authority, 
and  the  exercise  of  it  requires  him  to  keep  himself  in 
convenient  communication  with  each.  He  therefore 
cannot  possibly  in  person  command  either  while  in  active 
motion,  and  at  the  same  time  keep  himself  in  convenient 
communication  with  the  other.  Therefore,  as  com- 
mander-in-chief of  both,  he  is  practically  precluded 
from  in  person  commanding  either,  while  it  is  in  active 
service.  As  commander  of  the  militia  of  the  several 
states,  he  may  order  it  to  do  duty  in  any  part  of  the 
army  of  the  United  States.     This  authority  may  have 


ORGANIZATION  OF   THE   EXECUTIVE.  22  1 

been  thought  necessary,  because  no  state  is  authorized 
to  send  its  niiHtia  or  armed  men  into  any  other  state  with- 
out the  consent  of  that  state  into  which  they  may  be  sent ; 
but  it  is  also  necessary  to  enable  the  proper  officers  of  the 
army  to  assign  the  militia  to  such  regiments,  brigades, 
and  divisions  as  a  complete  organization  of  the  army  may 
require,  as  all  orders  of  any  officer  of  the  army  or  navy, 
lawful  in  character,  would  be  regarded  as  being  given  by 
the  president  as  commander-in-chief. 

Authority  to  require  the  opinion  in  writing  from  the 
head  of  executive  departments  greatly  strengthens  the 
president's  control  over  the  subdivisions  of  the  executive 
department  of  the  United  States,  he  being  the  chief  ex- 
ecutive officer  thereof. 

But  it  is  of  greater  importance  to  have  advisers  to  con- 
sult with  in  private  conversations  on  questions  of  great 
interest  to  the  welfare  of  the  United  States.  So,  the 
cabinet  officers,  each  of  whom  is  at  the  head  of  some 
bureau  under  the  jurisdiction  of  the  president,  constitute 
his  advisers.  The  president  has  a  right  to  call  them  to- 
gether at  will,  and  confer  with  them  in  a  body  about  any 
matter  relating  to  state  affairs,  and  may  require  any 
one  of  them  to  give  his  opinion  in  writing  about  any 
matter  relating  to  his  bureau. 

The  authority  of  the  president,  with  the  advice  and 
by  the  consent  of  the  senate,  to  make  treaties,  appoint 
ambassadors  and  other  public  ministers  and  consuls  to 
foreign  nations,  seems  to  be  sufficiently  guarded,  though 
it  was  the  cause  of  much  contention  during  the  time  the 
constitution  was  before  the  states  for  adoption,  but  the 
president  can  do  nothing  without  the  senate,  and  as 
the  senators  are  the  representatives  of  the  several  states 
in  their  organized  capacity,  that  ought  to  be  held  as  a 
sufficient  guard  against  the  mal-exercise  of  this  power. 


222  CONSTITrTlON    OF    THE   UNITED   STATES. 

But  the  duty  imposed  on  the  president  to  receive  am- 
bassadors and  other  public  ministers  and  consuls  was  so 
magnified  by  Mr.  Washington,  and  his  secretary  of  state, 
Mr.  Hamilton,  that  it  deserves  more  than  a  passing 
notice. 

It  will  be  remembered  that  France  aided  the  United 
States  in  winning  their  freedom  and  independence.  And 
in  1793,  ten  years  after  the  war  of  the  revolution  ended, 
France  became  involved  in  a  state  of  war  with  nearly 
the  whole  of  Europe,  and  the  American  people  generally 
sympathized  with  her,  particularly  as  she  had  adopted  a 
republican  form  of  government.  There  was  danger  of 
the  citizens  of  the  United  States  doing  something  that 
would  involve  the  United  States  in  hostilities  to  some  of 
the  enemies  of  France. 

To  avoid  all  danger  of  a  war  being  brought  on  by  the 
conduct  of  indiscreet  citizens,  Mr.  Washington,  who 
was  then  president  of  the  United  States,  •  issued  his 
proclamation  of  neutrality  ;  though  many  of  the  best 
informed  citizens  thought  that  the  treaty  with  France 
required  the  United  States  to  aid  that  nation  in  its 
struggle  to  maintain  its  republican  form  of  government, 
as  well  as  being  in  strong  sympathy  with  the  new  re- 
pubHc.  Consequently,  that  proclamation  was  highly 
censured  and  the  president  himself  was  not  spared  from 
their  criticisms. 

The  proclamation  having  been  issued  without  consult- 
ing the  senate,  the  senators  felt  their  dignity  had  been 
overlooked  by  the  president,  and  some  of  them  openly 
condemned  the  issuing  of  said  proclamation.  The  friends 
of  France  constituted  a  large  per  cent  of  the  American 
people. 

So  formidable  was  the  opposition  that  Mr.  Hamilton 
wrote  a  series  of   articles  in  defense  of  said  proclama- 


ORGANIZATION    OF   THE    KXECUTIVE.  223 

tion,  claiming  that  the  president  was  authorized  to  in- 
terpret treaties,  and  to  decide  whether  to  receive  ambas- 
sadors, ministers,  consuls,  etc.,  which  letters  were  pub- 
lished as  an  addenda  to  the  Federalist,  under  the  title  of 
Pacificiis. 

Mr.  James  Madison  answered  each  of  Air.  Hamilton's 
letters,  which  were  published  in  the  same  book  (the 
Federalist)  under  the  title  of  Helvidius. 

The  authority  of  the  president  of  the  United  States  to 
exercise  his  discretion  in  receiving  or  refusing  to  receive 
ambassadors,  ministers  and  consuls  was  discussed  by 
those  two  great  men  with  distinguished  ability  and  mi- 
nuteness. Although  Mr.  Hamilton  thought  it  necessary 
to  shift  his  position  during  that  discussion,  it  b}'  no 
means  shows  Mr.  Madison  to  have  been  his  intellectual 
superior,  for  Mr.  Hamilton  not  only  exhibited  great 
mental  power,  but  a  wonderful  elasticity  and  ready  grasp 
of  resources  in  debate,  but  he  was  hampered  by  his  pre- 
vious letters  in  defense  of  the  constitution,  while  it  was 
before  the  states  for  adoption,  which  were  frequently 
quoted  on  him  by  Mr.  Madison. 

Mr.  Hamilton,  drawing  from  a  difference  in  the  lan- 
guage used  in  the  delegation  of  the  legislative  authority 
from  that  used  in  the  delegation  of  the  executive  au- 
thority— the  language  used  in  the  former  being  :  "  «// 
legislative  power  he}  cin  granted  shall  be  vested  in  a  con- 
gress,'" etc.,  while  the  language  used  in  the  latter  is: 
' '  The  executive  pozuer  shall  be  vested  iyi  a  president, ' '  etc. — 
claimed  that  b}'  this  language  all  executive  authoritj'  was 
granted  to  the  president,  that  therefore  the  president  was 
vested  with  all  executive  powers  that  belonged  to  the 
executive  authority  of  nations,  except  such  powers  as 
may  have  been  taken  away  from  him  by  express  lim- 
itation in  the   constitution  ;    and  contended  that  under 


224  CONSTITUTION   OF   THE   UNITED   STATES. 

the  law  every  limitation  must  be  construed  strictly.  He 
admitted  that  the  power  to  declare  war,  and  the  power 
to  grant  letters  of  marque  and  reprisal,  being  expressly 
granted  to  congress,  the  president  was,  by  that  delega- 
tion to  congress,  ousted  of  that  executive  authority. 
And  the  concurrence  of  the  senate  being  required  to  all 
treaties  and  the  appointment  of  public  officers  by  express 
provision  of  the  constitution,  he  admitted,  deprived  the 
president  of  that  executive  power  also,  but  he  claimed 
that  these  powers  were  taken  out  of  the  grant  of  powers 
to  the  executive,  and  that  they  must  be  strictly  con- 
strued.    His  own  language  is  : 

' '  The  general  doctrine  of  our  constitution  then  is  that 
the  executive  power  of  the  nation  is  vested  in  the  presi- 
dent ;  subject  only  to  the  exceptions  and  qualifications 
which  are  expressed  in  the  instrument. 

' '  Two  of  these  have  already  been  noticed  :  the  partici- 
pation of  the  senate  in  the  appointment  of  officers,  and 
the  making  of  treaties. 

' '  A  third  remains  to  be  mentioned :  the  right  of  the 
legislature  to  declare  war  and  grant  letters  of  marque 
and  reprisal. 

"With  these  exceptions,  the  executive  power  of  the 
United  States  is  completely  lodged  in  the  president.  .  .  . 
It  may  be  said  that  this  inference  would  be  just  if  the  power 
of  declaring  war  had  not  been  vested  in  the  legislature ; 
but  that  this  power  naturally  includes  the  right  of  judg- 
ing whether  the  nation  is  or  is  not  under  obligations  to 
make  war. 

' '  The  answer  is,  that  however  true  this  position  may 
be,  it  will  not  follow  that  the  executive  is  in  any  case  ex- 
cluded from  a  similar  right  of  judging  in  the  execution 
of  its  functions. ' ' 

Passing  by  the  claim  of  Mr.  Hamilton  as  to  the  pow- 


ORGANIZATION    OF   THE    KXECUTIVE.  225 

ers  that  inherently  belong  to  the  executive,  for  the  pres- 
ent (which,  however,  is  disputed  on  high  authority),  he 
has  fallen  into  several  other  grave  errors,  that  should  be 
noticed. 

The  United  States  was  always  limited  to  one  of  the 
grand  objects  of  government,  therefore  is  not  and  never 
was  a  complete  government ;  all  of  the  powers  they  have 
or  can  have  must  be  delegated  to  them. 

The  reservation  of  sovereignty  in  the  people  of  the  re- 
spective states  made  the  United  States  a  federal  republic, 
and  prevented  them  from  constituting  a  nation  in  a  tech- 
nical sense. 

Now,  granting  Mr.  Hamilton's  interpretation  of  the 
language,  ''The executive  power  shall  be  vested  iii  a  presi- 
dent,'' etc.  What  executive  power  was  vested  in  the  pres- 
ident ?  Of  course,  it  must  be  the  executive  power  of  the 
United  States,  and  can  not  possibly  be  any  other  execu- 
tive power  ;  then  what  belongs  to  the  United  States  ? 
There  can  be  but  one  answer  to  that  inquiry,  which  is, 
nothing  but  delegated  powers,  as  defined  by  the  constitu- 
tion ;  hence,  the  delegation  of  the  executive  power  simply 
means,  the  executive  powers  granted  by  the  constitution 
shall  be  vested  in  a  president.  Therefore,  although  the 
power  to  declare  war,  make  treaties,  appoint  ambassa- 
dors, etc.,  may  belong  to  a  royal  prince,  it  by  no  means 
follows  that  these  powers  were  vested  in  the  president  of 
the  United  States  by  the  language  quoted,  and  there  is 
no  practical  difference  between  the  language  in  the 
delegation  of  the  executive  powers  and  the  delegation  of 
the  legislative  powers. 

The  grant  of  authority  to  the  congress  to  declare  war 
necessarily  carries  with  it  absolute  and  exclusive  dis- 
cretion to  decide  when  the  United  States  has  a  cause  for 


226  CONSTITUTION   OF   THE  UNITED   STATES. 

going  to  war,  and  that  discretion  can  not  reside  in  the 
president  and  in  the  congress  at  the  same  time. 

After  the  congress  shall  have  declared  war,  the  con- 
gress has  no  further  control  over  it,  except  to  vote  the 
means  to  carry  it  on  ;  the  power  of  making  treaties  being 
vested  in  the  president  and  the  senate,  they  alone  can  end 
the  war.  However,  the  congress  may,  by  refusing  to 
vote  the  means  of  carr>ang  it  on,  force  the  president  and 
the  senate  to  conclude  the  war  by  a  treaty  of  peace,  and 
every  treaty  is  declared  to  be  a  part  of  the  supreme  law 
of  the  United  States  by  the  constitution. 

But  Mr.  Hamilton  further  says :  ' '  Hence,  in  the  in- 
stance stated,  treaties  can  only  be  made  by  the  president 
and  senate  jointly  ;  but  their  activity  may  be  continued 
or  suspended  by  the  president  alone. ' ' 

It  being  the  duty  of  the  president  to  see  that  all  laws 
are  faithfully  executed,  and  all  treaties  being  expressly 
declared  to  be  part  of  the  supreme  law  of  the  land  by  the 
constitution,  how  can  the  president  suspend  it  without 
violating  his  oath  of  ofl&ce  and  laying  himself  liable  to 
impeachment  ? 

If  we  concede  the  authority  of  the  president  to  give 
greater  activity  to  one  treaty  than  another  or  to  suspend 
a  treaty,  we  must  concede  to  him  the  power  of  giving 
cause  of  war  and  of  bringing  it  on ;  for,  what  can  be  a 
more  fruitful  cause  of  war  than  bad  faith  in  keeping  or 
complying  with  treaties  ?  By  a  faithless  compliance  with 
a  treaty,  the  nation  having  rights  under  it  may  by  re- 
taliation so  act  as  to  force  the  congress  to  declare  war 
practically  brought  on  by  the  president. 

Mr.  Hamilton,  in  advocating  the  adoption  of  the  con- 
stitution by  the  states,  said  : 

' '  However  proper  or  safe  it  may  be  in  a  government 
where  the  executive  magistrate  is  a  hereditary  monarch 
to  commit  to  him  the  entire  power  of  making  treaties,  it 


ORGANIZATION    OF   THE    EXECUTIVE.  227 

would  be  utterly  unsafe  and  improper  to  intrust  that 
power  to  an  executive  magistrate  of  four  years'  duration. 
It  has  been  remarked,  upon  another  occasion,  and  the 
remark  is  unquestionably  just,  that  a  hereditary  mon- 
arch, though  often  the  oppressor  of  his  people,  has  per- 
sonally too  much  at  stake  in  the  government  to  be  in  any 
material  danger  of  being  corrupted  by  foreign  powers ; 
but  that  a  man  raised  from  the  station  of  private  citizen 
to  the  rank  of  chief  magistrate,  possessed  of  but  a 
slender  or  moderate  fortune,  looking  forward  to  a  period 
not  very  remote,  when  he  may  probably  be  obliged 
to  return  to  the  station  from  which  he  was  taken, 
might  sometimes  be  under  temptation  to  sacrifice  duty  to 
interest,  which  it  would  require  superlative  virtue  to 
withstand.  An  avaricious  man  might  be  tempted  to 
betray  the  interests  of  the  states  for  the  acquisition  of 
wealth.  An  ambitious  man  might  make  his  own  ag- 
grandisement by  the  aid  of  a  foreign  power,  the  price  of 
his  treachery  to  his  constituents.  The  history  of  human 
conduct  does  not  warrant  that  exalted  opinion  of  human 
virtue,  which  would  make  it  wise  in  a  nation  to  commit 
interests  of  so  delicate  and  momentous  a  kind  as  those 
which  co7icern  its  intercourse  ^\i\i  the  rest  of  the  world,  to 
the  sole  disposal  of  a  magistrate  created  and  circum- 
stanced as  would  be  a  president  of  the  United  States. ' '  * 

If  the  president  can  suspend  treaties  or  give  greater 
activity  to  some  than  to  others,  what  will  prevent  him 
from  using  that  power  to  increase  his  fortune  or  gratify- 
ing his  ambitions  by  the  aid  of  foreign  powers  should  he 
be  inclined  to  do  so  ? 

Mr.  Hamilton  claims  that  the  authority  of  the  pres- 
ident   to   receive    ambassadors    and   other   public    min- 


*  Letter  75,  p.  344,  Federalist. 


228  CONSTITUTION   OF   THE   UNITED   STATES. 

Isters  and  officers,  vests  the  president  with  a  discretion 
to  receive  them  or  not  when  defending  President  Wash- 
ington's neutrality  proclamation,  but  when  he  was  anxious 
for  the  states  to  adopt  the  constitution,  he  thought  differ- 
ently.    He  said : 

"The  president  is  also  to  be  authorized  to  receive  am- 
bassadors and  other  public  ministers.  This,  though  it 
has  been  a  rich  theme  of  declamation,  is  more  a  matter  of 
dignity  than  of  authority.  It  is  a  circumstance  which 
will  be  zvithout  consequence  in  the  administration  of  the 
government,  and  it  is  far  more  convenient  that  it  should 
be  arranged  in  this  manner  than  that  there  should  be  a 
necessity  for  convening  the  legislature  or  one  of  its 
branches  upon  every  arrival  of  a  foreign  minister, 
though  it  were  merely  to  take  the  place  of  a  departed 
predecessor. ' '  * 

The  authority  to  receive  ambassadors  and  other  public 
ministers  makes  the  president  the  usher  or  an  officer  to 
receive  strangers  at  the  door  and  to  conduct  them  into 
the  court,  and  to  point  out  to  them  their  proper  places, 
w^hich  court  consists  of  the  president  combined  with  the 
senate ;  and  until  the  president  convenes  himself  with 
the  senate,  he  has  no  more  authority  than  an  ordinary 
bailiff  or  sheriff  has  to  render  judgment  in  any  case  be- 
fore the  court. 

The  authority  to  make  wars  must  be  lodged  in  but  one 
department  of  the  government  to  prevent  the  clashing  of 
judgment,  and  to  secure  the  energetic  participation  of  the 
whole  people,  and  of  every  department  in  conducting  the 
same.  For  if  the  president  can  make  war  and  the  con- 
gress can  also  make  war,  they  will  each  seek  to  go  ahead 
of  the  other  in  bringing  on  a  popular  war,  and  the  de- 

*  Letter  69,  p.  319,  Federalist. 


ORGANIZATION   OF   THE   EXECUTIVE.  229 

partment  left  behind  may,  out  of  a  spirit  of  jealousy,  de- 
cry the  war  as  not  uecessar>'  or  proper,  and  without  actu- 
ally opposing  it,  may  to  some  extent  weaken  the  power 
of  prosecuting  it  with  vigor  and  the  full  force  of  the  na- 
tion ;  and  it  is  more  than  likely  the  president  would  act 
during  the  adjournment  of  the  congress  in  bringing  on  a 
popular  war,  and  fail  to  call  the  congress  together,  in 
extraordinary  session,  until  the  war  had  begun,  and  he 
would  then  convene  the  congress  to  vote  the  means  of 
carrying  it  on,  or  he  might  by  withholding  information 
on  a  plea  of  prudential  reasons,  prevent  the  congress 
from  taking  steps  before  the  end  of  the  session,  and  then 
bring  on  a  war. 

No  one  can  dispute  the  authority  of  congress  to  declare 
war  by  express  letter  of  the  constitution,  and  the  only 
claim  that  can  be  made  that  the  president  has  power  to 
bring  on  a  war,  must  be  based  on  his  duty  to  act  as  usher  in 
receiving  ambassadors  and  other  public  ministers ;  though 
the  exaltation  of  the  office  and  powers  of  the  president 
has  advanced  so  far  as  to  create  some  doubt  whether  he 
is  authorized  to  bring  on  a  war  without  a  formal  declara- 
tion thereof  by  the  congress.  No  one  can  dispute  the 
exclusive  authority  of  the  congress  to  grant  letters  of 
marque  and  reprisal ;  to  raise  and  maintain  armies  ;  to 
provide  and  maintain  a  na\^" ;  to  make  rules  for  the  gov- 
ernment of  the  land  and  naval  forces  ;  to  provide  for  call- 
ing forth  the  militia.  Consequently,  the  congress  alone 
is  the  power  to  determine  first,  whether  war  shall  be  de- 
clared ;  second,  whether  after  a  war  has  begun,  it  shall 
be  prosecuted  with  vigor  ;  therefore,  the  greatest  har- 
mony should  prevail  between  the  executive  and  legisla- 
tive departments,  but  if  one  disputes  the  authority  of  the 
other  and  refuses  to  respect  its  claims  or  authority,  they 
each  are  pro\aded  with  a  check  on  the  other. 

The  country  may  suffer  by  such  disputes,  but  it  can 


230  CONSTITUTION   OF   THE   UNITED   STATES. 

not  suffer  more  by  them  than  it  would  by  letting  either  of 
those  departments  usurp  powers  that  were  never  granted 
to  it,  to  be  used  as  a  precedent  for  further  encroachments 
on  the  reserved  rights  of  the  people  on  which  to  base  a 
revolution. 

While  the  congress  alone  is  authorized  to  declare  war, 
and  to  put  the  country  on  a  war  basis,  and  to  declare 
martial  law,  the  president  and  senate  conjointly  must 
agree  to  any  treaty  of  peace  ;  for  neither  the  president 
alone,  nor  the  senate  alone,  can  form  a  treaty  to  end  a 
war  after  it  has  been  declared  ;  but  the  president  and  the 
senate  must  concur  in  concluding  to  end  a  war  by  form- 
ing a  treaty  of  peace. 

Authority  to  appoint  ambassadors,  consuls  and  other 
public  ministers,  through  whom  this  country  communi- 
cates with  every  other  nation,  and  through  whom  treaties 
are  generally  conducted,  under  the  direction  of  the  presi- 
dent, is  also  intrusted  to  the  president  and  the  senate,  not 
to  the  president  alone,  nor  to  the  senate  alone,  but  to  the 
concurring  action  of  both. 

The  ambassadors,  consuls,  and  other  public  ministers, 
constitute  officers  and  agents  of  the  United  States 
whenever  they  are  properly  appointed  and  commissioned  ; 
not  agents  a7id  officers  of  the  president  or  the  seyiate,  and 
every  act  or  agreement  they  may  enter  into  or  perform 
officially,  are  acts  and  agreements  of  the  United  States, 
when  properly  ratified,  and  bind  the  United  States,  7iot 
the  prcsidetit  or  senate,  further  than  they  are  bound  as  de- 
partments or  agents  of  the  United  States,  to  observe 
them  as  a  part  of  the  supreme  law  of  the  land. 

Going  back  to  the  duty  of  the  president  to  receive 
ambassadors  and  other  public  ministers.  If  imposing  on 
the  president  that  duty  has  the  effect  of  vesting  him  with 
authority  to  refuse  to  receive  them,  then  all  of  the  fore- 
going checks  and  limitations  on  his  power  were  practi- 


ORGANIZATION    OF    THE    EXECUTIVE.  23 1 

cally  nullified  thereby  ;  to  illustrate  take  the  case  dis- 
cussed between  Messrs.  Hamilton  and  Madison.  France 
had  thrown  off  its  regal  government  and  constructed 
a  republic  in  its  stead,  and  the  United  States  had  its 
representative  at  the  court  of  the  republic,  at  the  time 
President  Washington  issued  and  published  his  neutrality 
proclamation.  Mr.  Madison  demonstrates  the  fallacy  of 
Mr.  Hamilton's  argument  by  giving  a  supposed  procla- 
mation to  suit  the  case,  which  is  as  follows  : 

WTiereas  a  treaty  was  conducted  on day  of 

between  the  United  States  and  the  French  nation, 
through  the  kingly  government  which  was  then  the 
organ  of  its  will,  and  whereas  the  said  nation  hath  ex- 
ercised its  right  (no  wise  abridged  by  the  said  treaty)  of 
changing  the  organs  of  its  will  by  abolishing  the  said 
kingly  government  as  inconsistent  with  the  rights  and 
happiness  of  the  people,  and  establishing  a  republican 
government  in  lieu  thereof,  as  most  favorable  to  the  pub- 
lic happiness  and  best  suited  to  the  genius  of  a  people 
become  sensible  of  their  rights  and  ashamed  of  their 
chains,  and  whereas  by  the  Constitution  of  the  United 
States  the  executive  is  authorized  to  receive  ambassadors, 
other  public  ministers  and  consuls,  and  whereas  a  public 
minister  duly  appointed  and  commissioned  by  the  new 
republic  of  France  hath  arrived  and  presented  himself  to 
the  executive,  in  order  to  be  received  in  his  proper  char- 
acter, now  be  it  known  that  by  virtue  of  said  right 
vested  in  the  executive  to  receive  ambassadors,  other 
public  ministers  and  consuls,  and  of  the  rights  included 
therein,  the  executive  hath  refused  to  receive  the  said 
minister  from  said  republic,  and  hath  thereby  caused  the 
activity  and  operation  of  all  treaties  with  the  French 
nation,  hitherto  in  force  as  the  suprei7ie  laze  of  the  land,  to 
be  suspended  until  the  executive,  by  taking  off  the  said 


232  CONSTITUTION   OF   THE   UNITED   STATES. 

suspension,  shall  receive  the  same ;  of  which  all  persons 
concerned  are  to  take  notice.* 

This  piece  of  satire  shows  the  absurdity  of  the  claims 
of  that  power  for  the  executive. 

But,  as  absurd  as  Mr.  Madison  made  that  claim  of 
power  in  the  executive  to  appear,  Mr.  Washington  de- 
clining to  make  another  race  for  president,  deprived  the 
people  of  an  opportunity  to  express  themselves,  about  that 
assumption  of  power. 

The  neutrality  message  by  which  that  power  was  as- 
sumed was  obeyed,  and  no  public  condemnation  by  a 
vote  of  the  whole  people  was  had,  although  many  openly 
and  publicly  condemned  it.  That  assumption  of  power 
stands  as  a  precedent  to  be  followed  by  other  presidents, 
which  has  not  only  been  followed  but  expanded  until  it 
is  a  matter  of  doubt  whether  the  war  making  power  re- 
sides exclusively  in  the  congress  or  not. 

Of  course  the  executive  authority  can  not  exercise  any 
war  making  power  as  long  as  the  congress  continues 
alive  to  its  duties  and  trusts,  and  ordinarily  mankind 
loves  power  and  is  slow  to  surrender  it ;  and  with  this 
natural  inclination  the  congress  could  be  safely  intrusted 
with  the  war  making  power  as  long  as  no  other  conflict- 
ing forces  can  be  made  to  bear  on  the  members  of  the 
congress. 

But  unfortunately  there  are  three  forces  that  are 
utilized  by  the  executive  to  overcome  the  pride  of  the 
legislative  powers  of  the  congress. 

The  first  and  most  potent  of  these  forces  was  made  by 
the  congress  itself,  which  arises  out  of  the  patronage  of 
the  president,  or  his  power  of  appointing  to  ministerial 
offices   persons   in   every   congressional   district    in   the 

*  Letter  No.  3,  page  447,  Federalist. 


ORGANIZATION    OF    THE    EXECUTIVE.  233 

union,  and  by  appointing  persons  to  fill  those  offices 
who  are  recommended  by  the  members  whose  votes  the 
president  may  desire  to  secure,  such  members  may  be 
induced  to  vote  on  measures  before  the  congress  as  the 
president  dictates. 

The  second  of  said  forces,  arises  out  of  a  natural  dis- 
inclination to  make,  what  appears  to  be  an  unsuccessful 
contest  with  the  president  of  their  own  party,  by  those 
members  who  remain  true  to  their  constituents,  however 
severely  they  may  condemn  such  proceedings  ;  and  should 
a  considerable  number  of  the  members  have  been  influ- 
enced by  the  president's  giving  them  the  use  of  his 
power  to  appoint  their  friends  to  ofl&ce,  it  will  always  ap- 
pear at  least  doubtful  whether  a  con\4ction  could  be  ac- 
complished, with  the  strongest  outside  evidence,  par- 
ticularly as  a  criminal  intent  must  be  shown  to  over- 
come the  custom  of  appointing  on  the  recommendation 
of  the  members  of  each  house  of  the  congress. 

The  third  of  said  forces  arises  out  of  a  natural  incli- 
nation to  avoid  doing  any  apparently  unnecessary  labor, 
or  taking  any  trouble  on  themselves,  and  to  avoid  the 
same  the  congress  has  attempted  to  vest  the  executive 
department  and  its  horde  of  ministerial  agents  with  pow- 
ers and  trusts  that  were  reposed  exclusively  in  the  per- 
sonal judgment  and  discretion  of  the  congress  while  in 
actual  session. 

Among  said  attempts  to  delegate  its  powers  the  con- 
gress passed  an  act  to  vest  the  secretar>^  of  the  treasury 
with  power  to  issue  and  sell  bonds  of  the  United  States 
whenever  he  should  find  it  uecessar}'  to  do  so,  to  enable 
him  to  redeem  the  legal  tender  notes  of  the  United  States. 

The  part  of  said  act  relating  to  vesting  the  secretary 
of  the  treasury  with  that  discretionary  power  to  issue 
and  sell  bonds  reads  as  follows  : 

"And  to  enable  the  secretary  of  the  treasury  to  pre- 


234  CONSTITUTION   OF   THE   UNITED   STATES. 

pare  and  provide  for  the  redemption  in  this  act  author- 
ized or  required,  he  is  authorized  to  use  any  surplus 
revenue,  from  time  to  time,  in  the  treasury  not  other- 
wise appropriated,  and  to  issue,  sell  and  dispose  of  at 
not  less  than  par,  in  coin,  either  of  the  description  of 
bonds  of  the  United  States  described  in  the  act  of  con- 
gress approved  July  fourteenth,  eighteen  hundred  and 
seventy,  entitled  '  an  act  to  authorize  the  refunding  of 
the  national  debt,'  vdth  like  quahties,  privileges,  and 
exemptions  to  the  extent  necessary  to  carry  this  act  into 
full  effect,  and  to  use  the  proceeds  thereof  for  the  pur- 
poses aforesaid." 

Under  this  act,  during  the  administration  of  President 
Cleveland,  bonds  to  the  extent  of  two  hundred  and  sixty- 
two  millions  of  dollars  were  issued  and  sold  by  the  then 
secretary  of  the  treasury  ;  although  his  authority  to 
issue  and  sell  bonds  was  limited  to  one  object  or  pur- 
pose, yet  if  he  had  authority  to  issue  and  sell  the 
bonds  of  the  United  States  for  any  purpose,  the  pre- 
sumption of  the  law  is  that  they  were  issued  for  that 
purpose,  and  therefore  legal  and  binding,  whatever 
may  have  been  the  real  purpose  of  issuing  and  selling 
them. 

If  the  secretary  of  the  treasury  can  be  vested  with  au- 
thority to  issue  and  sell  bonds  of  the  United  States  at 
his  discretion  as  to  when  they  may  be  needed,  when  the 
bonds  are  sold  and  the  proceeds  thereof  is  in  the  treas- 
ury, he  may  use  the  money  they  sold  for,  in  the  same 
way  that  any  other  money  in  the  treasury  can  be  used, 
even  to  the  maintaining  of  an  army  contrary  to  the  will 
of  the  congress. 

With  a  doubt  as  to  whether  the  power  of  making  wars 
is  in  the  president  or  in  the  congress,  coupled  with  the 
power  to  raise  money  to  carry  on  a  war,  through  his  sec- 
retary of  the  treasury,  the  president  can  soon  settle  the 


ORGANIZATION    OF    THE    EXECUTIVE.  235 

question  as  to  where  the  war  making  power  resides,  by 
usurping  that  power  to  himself. 

But  if  any  one  provision  of  the  constitution  is  placed 
beyond  all  equivocation  and  doubt,  it  is  that  the  con- 
gress alone  is  authorized  to  put  the  United  States  in 
debt  or  to  appropriate  any  money  that  belongs  to  the 
United  States,  and  the  congress  must  exercise  its  own 
discretion  and  judgment  in  each  case,  and  it  has  no  au- 
thority to  delegate  this  discretion  and  judgment  to  any 
other  tribunal  or  agent  ;  therefore,  that  part  of  said 
act  that  attempts  to  vest  the  secretary  of  the  treasury 
with  the  discretion  of  determining  when  to  issue  said 
bonds,  and  to  what  extent  to  issue  and  sell  them,  is  clearly 
unconstitutional  and  void. 

I  admit  that  the  congress  must  issue  and  sell  what- 
ever bonds  of  the  United  States  they  desire  to  sell, 
through  some  sort  of  an  agency,  and  that  the  sec- 
retary- of  the  treasury  is  the  most  appropriate  agent 
the  congress  can  adopt  for  that  purpose  ;  however, 
not  only  the  character  of  the  bonds  must  be  specified, 
but  the  number  or  extent  to  which  and  the  time  when 
they  are  to  be  issued  and  sold,  must  be  fixed  by  the  con- 
gress itself.  If  authority  to  determine  when  to  issue 
and  sell  them,  or  authoritj'  to  determine  the  extent  they 
may  be  issued  and  sold,  be  reposed  in  any  other  tribunal, 
officer  or  person,  than  the  congress  itself,  the  issue  and 
sale  of  them  would  be  unconstitutional  and  void. 


236         CONSTITUTION   OF   THE   UNITED   STATES. 

CHAPTER    VIII. 

ORGANIZATION   OF   THE  JUDICIARY   DEPARTMENT. 


Article  III. 

Sec.  I.  "  The  judicial  power  of  the  United  States  shall 
be  vested  in  one  supreme  court  and  in  such  inferior 
courts  as  the  congress  may  from  time  to  time  ordain  and 
establish.  The  judges,  both  of  the  supreme  and  inferior 
courts,  shall  hold  their  oflBces  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  compen- 
sation which  shall  not  be  diminished  during  their  con- 
tinuance in  office." 

Sec.  2.  "The  judicial  power  shall  extend  to  all 
cases  in  law  and  equity,  arising  under  this  constitu- 
tion, the  laws  of  the  United  States,  and  the  treaties 
made,  or  which  shall  be  made,  under  their  authority  ; 
to  all  cases  affecting  ambassadors,  other  public  min- 
isters and  consuls ;  to  all  cases  of  admiralty  and 
maritime  jurisdiction ;  to  controversies  to  which  the 
United  States  shall  be  a  party  ;  to  controversies  between 
two  or  more  states ;  between  a  state  and  citizens  of 
another  state ;  between  citizens  of  different  states ;  be- 
tween citizens  of  the  same  state,  claiming  lands  under 
grants  of  different  states,  and  between  a  state  or  the 
citizens  thereof,  and  foreign  states,  citizens  or  subjects. 
In  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  state  shall  be  a  party, 
the  supreme  court  shall  have  original  jurisdiction.  In 
all  the  other  cases  before  mentioned,  the  supreme  court 
shall  have  appellate  jurisdiction,  both  as  to  law  and  fact, 


ORGAXIZATIOX    OF    JUDICIARY    DEPARTMENT.       237 

with  such  exceptions  and  under  such  regulations  as  the 
congress  shall  make. 

"The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jur>' ;  and  such  trial  shall  be  held  in 
the  state  where  the  said  crime  shall  have  been  com- 
mitted ;  but  when  not  committed  within  anj'  state,  the 
trial  shall  be  at  such  place  or  places  as  the  congress  may- 
have  by  law  directed. ' ' 

Sec.  3.  "Treason  against  the  United  States  shall  con- 
sist only  in  levying  war  against  them,  or  in  adhering  to 
their  enemies,  giving  them  aid  and  comfort.  No  person 
shall  be  convicted  of  treason  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or  on  confession  in 
open  court. 

"  The  congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture  except  during  the  life 
of  the  person  attainted. ' ' 

The  acts  necessary^  to  constitute  treason  having  been 
so  plainly  defined,  and  the  provision  that  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  a  confession  in 
open  court,  to  convict  any  one  of  treason,  no  great  evil 
can  arise  out  of  authorizing  the  congress  to  prescribe  the 
punishment  thereof.  The  congress  is,  however,  limited 
in  prescribing  the  punishment  of  treason  by  the  last  para- 
graph, for  any  punishment  that  would  include  the  work- 
ing of  the  corruption  of  blood  that  might  be  provided  by 
congress,  would  be  absolutely  void,  and  ought  to  be  ;  for, 
by  the  corruption  of  the  blood  of  those  convicted  not  only 
inflicts  punishment  on  the  offender,  but  also  punishes  his 
family.  Nor  can  the  congress  make  the  forfeiture  of 
the  estate  of  any  one  convicted  of  treason  extend  beyond 
the  lifetime  of  the  offender. 

"The  judicial  power  of  the  United  States,"  as  used  in 
the  first  section  of  this  article,  includes  the  whole  judi- 


238  CONSTITUTION    OF   THE   UNITED   STATES. 

cial  authority  vested  in  either  of  the  departments  of 
the  United  States,  for  all  powers  to  be  used  for  the 
United  States  were  granted  to  the  three  several  depart- 
ments respectively,  and  neither  department,  either  singly 
or  as  a  whole,  has  any  power  except  such  as  was  dele- 
gated by  the  constitution.  "The  judicial  powers  of  the 
United  States"  include  the  powers  granted,  and  no  more, 
and  the  judges  of  the  courts  of  the  United  States  should 
always  ascertain  whether  the  power  has  been  granted  be- 
fore taking  jurisdiction  of  every  case  or  exercising  judi- 
cial control  over  it. 

The  second  section  of  this  article  defines  the  subjects, 
interests,  and  rights  over  which  the  supreme  court  is  to 
have  jurisdiction,  which  appears  to  include  every  sub- 
ject that  is  in  any  way  connected  with  the  powers  granted 
or  duties  imposed  on  the  union  or  any  of  the  depart- 
ments or  officers  thereof,  yet  that  jurisdiction  is  necessarily 
limited  by  the  limitations  imposed  on  the  several  grants 
of  powers  to  the  respective  departments  or  to  the  union 
as  a  whole  ;  notably  among  this  class  of  limitations  are 
actions  arising  under  acts  of  congress.  Before  con- 
sidering such  cases  the  court  should  ascertain  whether 
the  congress  was  authorized  to  pass  the  act ;  and  if  it  be 
found  that  the  congress  had  no  authority  to  enact  the 
law  under  which  the  claim  arises,  the  federal  court  would 
not  have  jurisdiction  of  the  case,  and  should  dismiss  it 
and  remit  the  parties  to  the  action  to  a  state  court  hav- 
ing jurisdiction  of  the  common  law  and  the  remedies 
thereof. 

There  is  nothing  in  the  language  of  this  article  that  ex- 
presses exclusive  jurisdiction  of  any  of  the  subjects  named 
therein  ;  but  from  the  character  of  all  cases  between  two 
or  more  states,  the  jurisdiction  ought  to  lie  exclusively 
in  the  federal  judiciary,  for  the  judiciary  of  neither  of 
the  states  that  are  parties  to  the  action  would  be  regarded 


ORGANIZATION    OF  JUDICIARY    DEPARTMENT.       239 

by  the  other  state  or  states,  parties  thereto,  as  prepared 
to  render  impartial  justice  between  them.  However,  any 
state  may  sue  any  other  state,  and  has  its  option  to  bring 
its  suit  in  the  supreme  court  of  the  United  States  di- 
rectly or  in  the  state  court. 

Article  6  of  the  constitution  conclusively  shows  that 
the  jurisdiction  of  the  federal  judiciary  is  not  exclusive 
as  to  any  subject  committed  to  it,  unless  as  to  controver- 
sies between  states  and  those  relating  to  ambassadors. 

Said  Article  6  is  as  follows:  "This  constitution,  and 
the  laws  of  the  United  States  which  shall  be  made  in  pur- 
suance thereof  ;  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land  ;  and  the  judges  in  every 
state  shall  be  bound  thereby,  any  thing  in  the  consti- 
tution or  laws  of  any  state  to  the  contrary  notwith- 
standing. ' ' 

It  will  be  seen  that  the  judges  of  the  states  are  men- 
tioned in  their  ofl&cial  capacity,  and  they  are  to  be  bound 
in  their  official  capacity,  and  are  therefore  vested  with  a 
judicial  discretion  to  ascertain  and  determine  w^hat  act  of 
the  congress  shall  have  been  made  in  pursuance  of  the  con- 
stitution, and  whether  that  which  is  claimed  to  be  a 
treaty  was  made  ' '  under  the  authority  of  the  United 
States,"  and,  to  determine  either  of  these  questions,  they 
must  necessarily  have  authority  to  inquire  into  the  mean- 
ing of  the  constitution  in  relation  thereto. 

But,  as  the  supreme  court  has  appellate  jurisdiction 
of  all  cases  named  in  said  second  section  (except  the 
cases  of  which  it  has  original  jurisdiction),  whether 
the  case  originates  in  a  state  court  or  in  an  inferior 
federal  court.  The  supreme  court  necessarily  con- 
stitutes the  only  tribunal  of  the  United  States  vested 
with  authority  to  finally  interpret  the  constitution  and 


240  CONSTITUTION   OF   THE   UNITED  STATES. 

laws  of  the  United  States.  The  convention  itself  did  not 
intend  to  vest  it  with  that  authority,  for,  when  the  con- 
stitution was  turned  over  to  the  committee  on  style,  it 
was  as  follows  : 

Art.  II,  Sec.  i.  "The  judicial  power  of  the  United 
States  shall  be  vested  in  one  supreme  court,  and  in  such 
inferior  courts  as  shall,  when  necessary,  from  time  to 
time,  be  constituted  by  the  legislature  of  the  United 
States. ' ' 

Sec.  2.  Provides  for  paying  the  judges. 

Sec.  3.  "The  jurisdiction  of  the  supreme  court  shall 
extend  to  all  cases  arising  under  laws  passed  by  the  leg- 
islature of  the  United  States  ;  to  all  cases  affecting  ambas- 
sadors, other  public  ministers  and  consuls ;  to  the  trial  of 
impeachment  of  ofl&cers  of  the  United  States ;  to  all  cases 
of  admiralty  and  maritime  jurisdiction  ;  to  controversies 
between  two  or  more  states,  except  such  as  shall  regard 
territory  or  jurisdiction  ;  between  a  state  and  citizens  of 
another  state ;  between  citizens  of  different  states ;  and 
between  a  state  or  citizens  thereof  and  foreign  states, 
citizens  or  subjects.  In  cases  of  impeachment,  cases 
affecting  ambassadors,  other  public  ministers  and  consuls, 
and  those  in  which  a  state  shall  be  a  party,  this  jurisdic- 
tion shall  be  original.  In  all  the  other  cases  before  men- 
tioned, it  shall  be  appellate,  with  such  exceptions  and 
under  such  regulations  as  the  legislature  shall  make. 
The  legislature  may  assign  any  part  of  the  jurisdiction 
above  mentioned  (except  the  trial  of  the  president  of  the 
United  States),  in  the  manner,  and  under  the  limitations, 
which  it  shall  think  proper,  to  such  inferior  courts  as  it 
shall  constitute  from  time  to  time. ' '  * 

It  will  be  observed  that  this  draft  of  the  constitution 


*  Elliott's  Debates,  vol.  i,  pp.  22S,  229. 


ORGANIZATION    OF   JUDICIARY    DEPARTMENT.       241 

did  not  vest  the  judiciary  with  jurisdiction  of  cases  aris- 
ing  wider  the  constitution. 

But,  when  it  was  put  into  the  hands  of  the  committee 
on  style,  it  was  changed.  The  Hon.  Gouverneur  Morris 
claims  the  credit  of  changing  it.  He  says  in  a  letter  to 
the  Hon.  Timothy  Pickering,  written  from  Morrisania, 
December  22,  1814: 

' '  My  Dear  Sir — What  can  a  histor}^  of  the  constitu- 
tion avail  toward  interpreting  its  provisions  ?  This  must 
be  done  by  comparing  the  plain  import  of  the  words  with 
the  general  tenor  and  object  of  the  instnunent.  That 
instrument  was  written  by  the  fingers  which  write  this 
letter.  Having  rejected  redundant  and  equivocal  terms, 
I  believed  it  to  be  as  clear  as  our  language  would  permit, 
excepting,  nevertheless,  a  part  of  what  relates  to  the 
judiciary.  On  that  subject,  conflicting  opinions  had 
been  maintained  with  so  much  professional  astuteness 
that  it  became  necessary  to  select  phrases  which,  ex- 
pressing my  owTi  notions,  would  not  alarm  others,  nor 
shock  their  self-love  ;  and,  to  the  best  of  my  recollection, 
this  was  the  only  part  which  passed  without  ca\41. 

"But,  after  all,  what  does  it  signify  that  men  should 
have  a  written  constitution,  containing  unequivocal  pro- 
visions and  limitations  ?  The  legislative  lion  will  not  be 
entangled  in  the  meshes  of  a  logical  net.  The  legislature 
will  always  make  the  power  which  it  wishes  to  exercise, 
unless  it  be  so  organized  as  to  contain  within  itself  the 
sufficient  check.  Attempting  to  restrain  it  from  outrage, 
by  other  means,  will  only  render  it  more  outrageous.  The 
idea  of  binding  legislators  by  oath  is  puerile.  Having 
sworn  to  exercise  the  power  granted  according  to  their 
true  intent  and  meaning,  they  will,  when  they  feel  a 
desire  to  go  farther,  avoid  the  shame,  if  not  the  guilt,  of 
perjur>^  by  swearing  the  true  intent  and  meaning  to  be, 


242  CONSTITUTION   OF   THE   UNITED   STATES. 

according  to  their  comprehension,  that  which  suits  their 

purpose. ' '  * 

If  the  legislative  department  can  not  be  entangled 
in  logical  nets,  how  can  a  judiciary  clothed  with  auto- 
cratic powers  be  expected  to  be  controlled  thereby  ? 

This  letter  shows  that  the  able  writer  of  it  greatly  de- 
sired to  change  the  organization  of  the  judiciary  depart- 
ment so  as  to  make  it  agree  with  his  own  notion,  against 
which  conflicting  opinions  had  been  maintained  wath  pro- 
fessional astuteness  in  the  convention,  consequently  the 
change  was  so  skillfully  drafted  as  to  escape  the  attention 
of  those  who  opposed  his  notions  with  such  professional 
astuteness,  for  if  their  attention  had  been  drawn  to 
the  changes,  they  could  with  the  same  professional 
astuteness  defeat  the  ingrafting  of  his  notions  in  the  ju- 
diciary department,  though,  as  an  appointee  of  the  con- 
vention, to  correct  the  style  only,  he  was  in  duty  bound  to 
have  called  the  attention  of  the  convention  to  any  and 
every  change  made  in  any  part  of  the  instrument  by  his 
committee  ;  but,  having  admitted  in  this  letter  that  he 
was  willing  to  ingraft  his  notions  in  the  organization  of 
the  judiciary  by  phrases  that  "would  not  alarm  others 
nor  shock  their  self-love,"  his  moral  sentiment  was  no 
spur  to  the  discharge  of  that  duty,  and  he  was  a  man  of 
too  much  mental  capacity  to  invite  the  attention  of  the 
convention  to  the  changes  made,  as  it  would  not  only 
defeat  his  scheme,  but  expose  his  shame,  and  thereby 
destroy  his  ability  to  lead  the  convention  into  any  of  his 
measures. 

What  changes  the  Hon.  Mr.  Morris  so  earnestly  de- 
sired to  ingraft  on  the  judiciary,  he  does  not  state.  But 
by  comparing  the  draft  of  the  constitution  as  it  was 
when  it  was  put  into  the  hands  of   the  committee  on 

*  Elliott's  Debates,  vol.  i,  pp.  506,  507. 


ORGANIZATION    OF    JUDICIARY    DEPARTMENT.       243 

Style  with  what  it  was  when  returned  to  the  convention, 
the  desired  change  must  have  been  to  give  jurisdiction  in 
cases  arising  under  the  constitution.  The  draft  of  the 
constitution  as  agreed  to  by  the  committee  on  detail  was 
reported  to  the  convention  on  the  6th  of  August,  and 
was  debated  by  the  committee  of  the  whole  and  the  con- 
vention until  the  1 2th  of  September,  during  which  time 
some  minor  changes  were  made  by  the  convention  itself, 
among  which  was  that  of  making  the  senate  a  court  to 
try  impeachment  of  the  officers  of  the  United  States. 

But  the  important  changes  made  by  the  committee,  to 
which  I  desire  to  call  attention  in  this  connection,  is, 
that  of  extending  jurisdiction  of  the  judiciary  "  to  all  cases 
.  .  .  arising- 7indcrf/ieco?isfil!(llo?i,"  which,  irora  the  Tpro- 
ceedings  in  the  convention,  as  well  as  the  original  draft 
of  the  constitution  as  it  was  when  turned  over  to  the 
committee  on  style,  must  have  been  the  change  necessary 
to  put  that  instrument  in  accord  with  Hon.  G.  Morris's 
notions  referred  to  in  his  letter  to  the  Hon.  Mr.  Pickering. 
But  whatever  the  change  so  earnestly  desired  may  have 
been,  the  Hon.  Mr.  Morris  doubtless  believed  it  was 
necessary  to  perfect  the  character  of  the  government,  else 
he  would  not  have  given  publicity  to  his  double  dealing 
with  his  associates  in  the  convention. 

The  committee  on  style  was  appointed  by  ballot  on  the 
8th  of  September,  consisting  of  Messrs.  Johnson,  Hamil- 
ton, G,  Morris,  Madison  and  King,  and  they  reported 
back  to  the  convention  on  the  1 2th  of  said  month  ;  and 
on  the  lyth  thereof,  the  engrossed  constitution  was  read 
and  adopted  by  the  convention  and  ordered  reported  to 
the  congress. 

Letters  of  Mr.  Hamilton  (published  in  the  Federalist), 
in  defense  of  the  constitution  while  it  was  before  the 
states  for  adoption,  show  that  he,  in  glowing  terms,  ap- 


244  CONSTITUTION   OF   THB  UNITED   STATES. 

proved  of  the  organization  of  the  judiciary  in  every  par- 
ticular as  changed  and  adopted  by  the  convention. 

He  also  approved  of  dispensing  with  the  Enghsh  rule 
of  removing  the  judges  by  address  of  the  legislative  de- 
partment, and  urged  as  a  reason  thereof  that  the  judiciary 
should  be  entirely  free  from  the  control  of  either  of  the 
other  departments  to  enable  it  to  protect  the  people 
against  oppressions  from  either  of  them,  and  to  protect 
the  weak  against  the  strong. 

It  is  true,  had  the  judges  been  made  removable  by  the 
legislative,  it  would  have  weakened  the  judiciarj^  and  it 
may  have  required  a  clear  case  of  usurpation  by  the  con- 
gress to  induce  the  courts  to  decide  any  act  to  be  uncon- 
stitutional. 

Judge  Tucker,  in  notes  to  his  edition  of  Blackstone's 
Commentaries,  also  expressed  his  approval  of  giving  the 
judiciary  jurisdiction  of  cases  arising  under  the  constitu- 
tion, and  of  dispensing  with  the  English  rule  of  remov- 
ing the  judges  by  address  of  the  legislative  department. 

Judge  Tucker,  Mr.  Hamilton  and  Mr.  G.  Morris  were 
each  learned  lawyers  of  recognized  ability  ;  but  as  patri- 
ots, it  probably  did  not  occur  to  them,  that  exclusive  au- 
thority to  interpret  the  constitution  carried  with  it  the 
power  to  change  the  constitution  at  will,  which,  coupled 
with  life  tenure  in  office,  tended  to  make  aristrocrats  of 
the  judges,  and  cause  them  to  lean  to  an  aristocracy  in 
their  rulings  and  construction  of  the  powers  under  the 
constitution. 

The  history  of  governments  shows  that  the  judiciary 
is  as  much  inclined  to  augment  the  powers  of  their  gov- 
ernment as  the  officers  of  any  other  department  thereof. 

But  that  is  a  natural  weakness  of  human  nature,  for 
the  greater  the  powers  of  the  government,  the  greater  the 
powers  of  the  judiciary'  must  be  ;  and  the  greater  their 
powers,    the    more  resplendent   their  official  position  is 


ORGANIZATION    OF   JUDICIARY    DEPARTMENT.       245 

made,  and  it  is  quite  natural  for  them  to  grasp  after 
power  and  position, 

Without  intending  any  reflection  on  the  personal  char- 
acter of  the  judges  of  the  supreme  court  of  the  United 
States,  for  they  have  always  been  gentlemen  of  such 
high  character,  and  recognized  patriotism,  that  any  re- 
flection on  them,  would  recoil  on  their  assailant,  yet  the 
history  of  adjudications  in  the  United  States  shows  that 
they  were  not  strangers  to  this  human  weakness,  and  that 
on  several  occasions  they  have  shown  a  disposition  to 
augment  the  powers  of  the  United  States,  which  will  be 
pointed  out  in  a  subsequent  part  of  this  chapter. 

While  the  language  of  the  second  section  of  article 
three  seems  to  vest  the  supreme  court  with  exclusive 
jurisdiction  to  interpret  the  constitution,  it  must  be  con- 
ceded that  this  language  is  the  work  of  the  skillful  pen  of 
the  Hon.  Gouvemeur  Morris.  That  seeming  jurisdic- 
tion is  in  conflict  with  the  organization  of  the  three 
grand  departments,  legislative,  executive  and  judiciary. 
And  is  in  conflict  with  article  six  of  the  constitution. 

The  United  States  being  merely  a  name  to  indicate 
the  several  states  united,  and  not  a  government  to  be 
divided  into  departments,  as  is  the  case  wath  the  states  ; 
and  as  shown  by  the  preamble  to  the  constitution,  the 
constitution  alone  was  ordained  and  established  by  the 
convention.  Under  that  instrument  no  power  was  granted 
to  the  United  States  in  that  name ;  but  all  powers 
that  were  granted  by  that  instrument  were  granted 
directly  to  each  department  separately.  By  the  sixth 
article  the  officials  of  each  department  are  required  to 
take  an  oath  to  support  the  constitution,  and  the  judges 
of  the  courts  of  the  several  states  are  also  required  to  take 
an  oath  to  support  the  constitution,  and  as  judicial  officers 


246  CONSTITUTION   OF   THE   UNITED   STATES. 

are  bound  to  enforce  the  constitution  ;  the  laws  made  in 
pursuance  thereof,  and  all  treaties  made  and  those  to  be 
made  under  authority  of  the  United  States. 

The  several  departments  of  the  United  States  and  the 
judiciary  of  the  several  states  being  equally  bound  to 
support  the  constitution,  they  must  be  authorized  to  con- 
strue it.  If  the  legislative  and  executive  departments  of 
the  United  States,  and  the  judiciary  of  the  several  states, 
are  bound  to  support  the  constitution  as  it  may  be  in- 
terpreted by  the  supreme  court,  they  may  be  required  to 
support  it  in  one  way  to-day,  another  to-morrow,  and  still 
a  different  way  the  day  after  to-morrow,  even  if  contrary 
to  their  conscientious  belief. 

The  state  judges  being  authorized  to  exercise  a  ju- 
dicial discretion,  they  are  necessarily  authorized  to  in- 
terpret the  constitution  in  the  administration  of  their 
judicial  duties.  Then,  suppose  the  supreme  court  should 
decide  that  the  constitution,  rightly  interpreted,  author- 
izes the  president  to  suspend  the  writ  of  habeas  corpus, 
and  the  president  should  by  proclamation  attempt  to  sus- 
pend that  writ,  and  a  citizen  of  a  state  was  in  prison 
without  a  trial  by  due  course  of  law,  and  a  state  judge 
should  be  called  on  to  issue  that  writ,  can  there  be  a 
doubt  of  the  duty  of  the  state  judge  to  issue  it  ?  Or, 
suppose  the  congress  should  by  a  bill  of  attainder 
deprive  a  citizen  of  a  state  of  his  right  to  hold  the 
title  to  his  property,  and  the  supreme  court  should 
hold  that  a  proper  interpretation  of  the  constitution  au- 
thorized such  bills  of  attainder,  can  there  be  a  doubt  in 
the  mind  of  any  one  as  to  the  duty  of  the  state  courts 
to  refuse  to  enforce  such  attainders  ?  These,  it  is  true, 
are  strong  cases,  but  it  often  requires  strong  cases  to 
carry  a  principle  clearly  to  the  mind,  and  it  will  be  shown 
by  the  adjudications  of  the  supreme  court  that  the  use  of 
strong  cases  to  illustrate  principles  are  at  least  excusable. 


ORGANIZATION    OF    JUDICIAkV    DEPARTMENT.       247 

Furthermore,  the  fact  that  the  powers  granted  by  the 
constitution  were  vested  in  each  department  separately, 
clearly  shows  that  the  makers  of  the  constitution  in- 
tended that  the  three  departments  should  be  co-ordinate, 
and  that  each  department  should  be  supreme  to  the  ex- 
tent of  the  powers  vested  in  it,  and  that  neither  one 
should  be  superior  to  the  other.  If  the  legislative  and 
executive  departments  are  required  to  accept  the  consti- 
tution as  it  may  be  interpreted  by  the  supreme  court,  they 
are,  each,  subordinate  to  that  court,  or  that  court  may, 
by  interpretation,  change  the  powers  of  each  of  said  de- 
partments. 

And  whenever  that  court  enlarges  the  powers  of 
either  the  legislative  or  executive,  or  its  own,  such 
additional  powers  must  be  taken  from  the  states,  or 
from  the  people,  or  from  the  other  departments,  for 
they  could  not  be  taken  from  any  other  source  ;  and 
whenever  that  court  takes  away  from  either  the  legis- 
lative or  executive  departments  any  powers  by  interpre- 
tation, the  powers  so  taken  would  fall  back  to  the  states 
or  to  the  people,  unless  otherwise  appropriated  by  that 
court.  If  the  change  made  by  the  committee  on  style 
had  the  effect  of  giving  the  supreme  court  exclusive  juris- 
diction to  interpret  the  constitution,  that  court  was  con- 
verted into  an  oligarchy  instead  of  a  co-ordinate  de- 
partment of  a  republican  form  of  government.  Still 
the  freedom  of  the  states  will  be  in  the  way  of  that 
department  exercising  its  unlimited  powers  ;  the  gov- 
ernment must  therefore  be  first  converted  into  an  em- 
pire, by  breaking  down  the  independence  of  the  states 
and  reducing  them  to  provinces  ;  to  do  which,  the  aid  of 
both  the  legislative  and  executive  departments  will  be 
needed  ;  but  as  soon  as  the  states  can  be  reduced  to 
provinces  the  supreme   court   can   assert    its    unlimited 


248  CONSTITUTION   OF   THE   UNITED   STATES. 

authority  over  the  legislative  and  executive  departments 
with  impunity.  And  our  constitutional  fathers  gave  us 
the  most  autocratic  oligarchy  the  world  has  ever  known, 
instead  of  the  federal  republic  boasted  of  by  American 
statesmen  and  politicians. 

This  jurisdiction  is  too  great  and  far  reaching  to  be 
reposed  in  any  human  authority,  except  the  sovereign 
people  themselves.  And  Mr.  Jefferson  when  a  candidate 
for  president  in  1800;  President  Jackson  while  a  candi- 
date for  re-election  to  the  office  of  president  in  1832  ;  and 
Mr.  Lincoln  while  a  candidate  for  president  in  i  SGo  :  each 
denied  the  supreme  court  was  vested  with  that  juris- 
diction. 

While  the  alien  and  seditio7i  act  of  congress  was 
never  acted  on  by  the  whole  court,  enough  of  the 
judges  of  that  court  sustained  the  validity  of  it,  while 
on  the  circuit  court  bench,  to  show  that  it  would  be  sus- 
tained by  the  supreme  court.  And  Mr.  Jefferson 
denied  the  constitutionality  of  that  act,  which  was  dis- 
cussed as  an  issue  in  his  election  in  1800,  and  the  people 
sustained  Mr.  Jefferson  by  electing  him  by  a  large 
majority. 

President  Jackson  during  his  first  term  vetoed  what 
was  known  as  the  recharter  of  the  United  States  bank, 
on  the  ground  that  the  congress  had  no  authority  to 
charter  banks,  although  the  supreme  court  had  decided 
the  original  charter  thereof  to  be  constitutional.  Presi- 
dent Jackson  contending  that  it  was  his  duty  to  decide 
upon  the  constitutionality  of  the  charter  for  himself,  and 
refused  to  follow  the  interpretation  of  the  supreme  court ; 
and  went  before  the  people  on  that  issue  and  they  sus- 
tained him  by  electing  him  by  a  large  majority. 

Mr.  Lincoln  denied  the  validity  of  the  decision  of  the 
supreme  court  in  the  celebrated  case  known  as  the  Dred 
Scott  case,  in  which  that  court  held   that  negroes  were 


ORGANIZATION   OF  JUDICIARY   DEPARTMENT.       249 

not  citizens,  and  could  not  be  made  such,  so  as  to  entitle 
them  to  the  privileges  and  immunities  of  citizens  in  all 
of  the  states,  and  the  people  sustained  him,  by  electing 
him  by  a  large  majority. 

But  there  being  no  provision  of  the  constitution  au- 
thorizing appeals  of  such  cases  to  the  people,  the  action 
of  the  people  in  neither  of  said  cases  amounted  to  any 
thing,  except  Mr.  Lincoln's  appeal,  which  resulted  in 
manumitting  slavery  in  the  United  States,  and  making 
native-bom  negroes  wards  of  the  United  States  and  of 
the  state  wherein  they  reside,  with  the  right  to  vote  in 
elections,  and  to  buy,  own  and  pass  the  title  to  every 
character  of  property. 

As  able  and  patriotic  as  the  judges  of  the  supreme 
court  have  always  been,  they  have  betrayed  a  disposi- 
tion to  augment  the  powers  of  the  judiciary  by  delining 
the  character  of  the  United  States  government  and  hold- 
ing the  same  to  be  vested  with  sovereign  powers.  While 
the  preamble  thereof  shows  that  nothing  was  ordained  or 
established  except  the  constitution  ;  and  the  constitution 
shows  that  every  power  granted  by  it  was  granted 
directly  to  one  or  the  other  of  the  three  departments,  to- 
wit :  legislative,  executive  and  judiciary,  and  that  no 
power  was  granted  to  the  United  States  as  a  government, 
though  specific  duties  were  imposed  on  the  states  united, 
in  that  name  ;  hence,  the  United  States  government  can 
not  be  sovereign  in  any  sense  whatever,  but  is  simply  an 
agent  and  representative  of  the  several  states  in  the 
union. 

Among  the  cases  that  court  so  held,  are  the  cases  of 
Chisholm  v.  the  State  of  Georgia,  decided  in  1792  ;=^  that 
of  Martin  v.  Hunter's  Lessee ;  t  that  of  McCollough  v. 
the  State  of  Maryland  ;  %    that  of  Gibbons  v.  Ogden  ;  |j 


♦Reported  in  2  Dall.  419.     1 1  ^Vheat.  304.     %  4  id.  316.     ]|  9  id.  1. 


250  CONSTITUTION   OF   THE   UNITED   STATES. 

and  that  of  the  Dartmouth  College.*  It  is  true,  that 
court  recognizes  the  right  of  the  people  to  recover  sover- 
eign control  at  any  time  ;  but,  as  shown  in  the  first 
chapter  of  this  review,  that  right  can  not  benefit  the 
people,  for,  if  the  sovereignty  is  in  the  government,  the 
government  holds  it  as  trustee,  and  is  in  duty  bound  to 
hold  on  to  it,  unless  it  be  lawfully  demanded,  so  that  un- 
less the  constitution  provides  for  the  exercise  of  that  au- 
thority by  the  people  without  assigning  any  cause,  a 
cause  must  be  assigned  to  authorize  the  officials  to  sur- 
render it,  and  if  the  government  is  sovereign,  it  alone 
has  the  right  to  decide  whether  the  assigned  cause  be 
well  founded  ;  and  any  cause  that  could  be  assigned  must 
involve  the  good  faith  of  the  government  officials,  as 
trustees  thereof,  and  they  would  not  be  likely  to  admit 
their  guilt. 

The  decision  of  Chisholm  v.  The  State  of  Georgia  in 
1792,  together  with  several  other  cases  of  similar  charac- 
ter in  the  United  States  circuit  courts,  brought  by  for- 
eign creditors  against  different  states,  caused  the  eleventh 
article  of  amendment  to  the  constitution  to  be  adopted, 
which  provides  that  the  constitution  shall  not  be  so  con- 
strued as  to  give  to  the  federal  courts  jurisdiction  of  ac- 
tions against  any  state  by  citizens  of  another  state,  or  by 
citizens  or  subjects  of  any  foreign  nation  or  state. 

Notwithstanding  this  amendment  the  supreme  court  did 
take  jurisdiction  of  the  action  of  McCuUoch  v.  The  State 
of  Maryland,  and  on  the  theory  that  the  government  of 
the  United  States  was  sovereign,  decided  that  the  con- 
gress was  authorized  to  charter  banks  as  a  necessary 
power  to  the  sovereignty  of  the  government  of  the  United 
States,  although  no  such  authority  could  be  found  in  the 
letter  of  the  constitution. 

*  4  Wheat.  518. 


ORGANIZATION    OF   JUDICIARY    DEPARTMENT.       251 

Yet  notwithstanding  said  eleventh  amendment,  the 
supreme  court  has  uniformly  taken  jurisdiction  of  actions 
to  prevent  any  state  from  amending  or  repealing  a  charter 
of  a  private  corporation  created  by  the  state,  on  the 
ground  that  such  charters  are  contracts  between  the  state 
and  the  corporators,  ever  since  the  celebrated  case  of 
Dartmouth  College,  until  the  states  relieved  themselves 
of  that  interference  by  providing  by  general  statutes  or 
amendments  to  their  respective  constitutions,  making 
such  charters  slibject  to  repeal  or  amendment  as  a  part  of 
the  contract  indicated  by  the  charter. 

Since  the  Ogden-Gibbon  case,  reported  in  9th  Wheaton, 
page  I,  the  federal  courts  have  taken  jurisdiction  of  cases 
relating  to  commerce  between  states,  notwithstanding 
the  fourth  article  of  the  constitution,  which  of  itself 
regulates  commerce  and  all  intercourse  between  the  states 
as  the  basis  of  the  union,  in  such  a  clear  and  concise 
manner  as  to  leave  no  room  for  the  regulation  of  com- 
merce between  the  states  by  the  congress,  which  has 
been  shown  in  considering  the  delegation  of  authority  to 
congress  to  regulate  commerce  with  foreign  nations  and 
among  the  several  states. 

The  supreme  court  applies  an  act  of  congress,  passed 
to  enable  the  president  to  enforce  the  constitution  in 
states  standing  in  rebellion  to  the  union  and  the  constitu- 
tion by  state  legislative  acts  prohibiting  the  enforcement 
of  the  constitution  therein,  and  the  fugitive  slave  acts  of 
congress  ;  to  states  in  entire  harmony  and  accord  with 
the  union  and  constitution,  notably  is  the  case  of  Neagle, 
of  California. 

As  this  question  has  not  been  discussed  elsewhere  in 
this  review,  I  will  consider  it  fully  here.  This  case  arose 
in  San  Joaquin  county,  California,  in  1SS9.  Ex-Chief- 
justice  Terry  of  the  supreme  court  of  that  state  took  of- 
fense at  the  manner  and  ruling  of  Justice  Field,  of  the 


252  CONSTITUTION   OF   THE   UNITKD   STATKS. 

supreme  court  of  the  United  States,  while  sitting  in  the 
circuit  court  of  the  United  States,  in  that  state.  And 
Justice  Field  conceiving  it  to  be  his  duty  to  return  to 
California  to  again  aid  in  holding  the  circuit  court  of  the 
United  States,  the  attorney-general;  fearing  harm  might 
overtake  him  (Field)  at  the  hand  of  ex-Chief-justice 
Terr>',  telegraphed  the  United  States  marshal  of  that 
state  to  furnish  a  deputy  to  go  with  Justice  Field  to 
protect  him,  and  Mr.  Neagle  was  deputed  for  that  pur- 
pose, being  a  fearless  and  resolute  man. 

When  ex-Chief-Justice  Terry  and  Justice  Field  met  in 
California,  Neagle  thinking  the  apprehended  collision 
was  about  to  take  place,  thereupon  shot  and  killed  ex- 
Chief-Justice  Terry.  The  state  authorities  instituted 
proceedings  to  try  him,  but  the  circuit  judge  of  the 
United  States  circuit  court,  embracing  the  northern  dis- 
trict of  that  state,  by  writ  of  habeas  corpus,  took  Neagle 
out  of  the  custody  of  the  state  oflScials,  and  discharged 
him  without  a  trial  by  jury. 

An  appeal  was  taken  by  the  state  of  California  to  the 
supreme  court  of  the  United  States,  and  by  a  divided 
court,  the  ruling  of  the  circuit  judge  on  the  writ  of  habeas 
corpus  was  sustained,  Chief-Justice  Fuller  and  Justice 
LaMar  dissenting.* 

If  the  state  of  California  had  been  in  rebellion  (as  the 
states  that  passed  acts  against  the  enforcement  of  the 
fugitive  slave  laws  were),  and  Neagle  had  been  on  mili- 
tary duty,  and  had  committed  that  crime  in  the  dis- 
charge of  that  duty,  he  could  have  been  tried  under  the 
laws  of  the  United  States,  and  shielding  him  from  a  public 
fair  trial  under  the  state  laws,  would  not  have  been  so 
severe  a  blow  against  the  safeguards  of  life,  liberty  and 
property.     But  the  state  of  California  was   in   absolute 

*  315  U.  S.  Reports,  p.  i. 


ORGANIZATIOX    OF    JUDICIARY    DEPARTMENT.       253 

subordination  to  the  United  States  at  the  time,  and  had 
full  control  of  the  police  and  peace  laws  of  the  state,  and 
could  have  furnished  better  protection  to  Justice  Field 
than  the  United  States  authorities  could.  The  attorney- 
general  of  the  United  States,  however,  must  have  thought 
other^'ise,  else  he  would  not  have  ordered  the  United  States 
marshal  to  disregard  and  nullify  the  rightful  police  au- 
thority of  the  State  of  California.  In  the  execution  of 
that  usurped  authority,  the  crime  was  committed. 

The  supreme  court  admitted  that  there  was  no  authority 
to  try  said  Neagle  by  a  jury  under  the  laws  of  the  United 
States.  But  a  majority  of  said  court  claimed  that  he 
could  be  tried  without  a  jury  by  the  federal  courts.  It 
is  provided  by  the  federal  constitution  that : 

"  In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  state  and  district  wherein  the  crime  shall 
have  been  committed.      .     .      . "  * 

The  majority  of  the  court  may  have  acted  on  the 
theory  that  this  provision  applies  alone  to  the  accused, 
and  that  no  right  is  guaranteed  to  society  by  it. 

In  every  prosecution  there  must  be  two  parties,  the 
representative  of  society  as  prosecutor,  and  the  accused 
who  is  being  prosecuted,  and  each  party  is  entitled  to  a 
speedy  public  trial,  by  an  impartial  jur\'  of  the  state  and 
district  wherein  the  crime  was  committed.  If  this  pro- 
vision applies  to  the  accused  alone,  no  guilty  man  would 
ever  be  ready  to  demand  that  right,  and  no  guilty  man 
w^ould  ever  be  tried  and  punished. 

The  only  protection  society  can  possibly  derive  from 
any  government,  must  necessarily  arise  out  of  the  power 
to  punish  those  who  commit  crimes  ;  for  it  is  by  punish- 
ing criminals  that  others  are  deterred  from  committing 

*  Art.  6  of  Amendment  to  Con. 


254  CONSTITUTION    OF    THE   UNITED    STATES. 

similar  crimes,  so  that  society  has  as  much  interest  in 
the  just  and  impartial  execution  of  the  criminal  law  as 
any  criminal  can  possibly  have. 

That  ruling  not  only  lays  the  foundation  for  depriving 
any  state  from  protecting  the  society  thereof,  by  execut- 
ing the  penal  and  criminal  laws  of  the  state,  but  it  es- 
tablishes a  precedent  for  shielding  a  favored  class  from 
responsibility  to  the  penal  and  criminal  laws  of  the  state, 
and  thereby  establishes  grades  of  society  in  the  states 
more  obnoxious  to  the  spirit  of  freemen  than  the  dis- 
tinction between  the  patricians  and  plebeians  of  Rome,  or 
the  distinction  between  the  aristocracy  and  the  common 
people  of  England. 

The  claim  that  Neagle  was  obeying  orders  of  the  presi- 
dent in  going  with  Justice  Field  to  protect  him,  concedes 
that  he  was  in  the  act  of  violating  that  provision  of  the 
constitution  that  requires  the  United  States  to  guarantee 
to  the  states  republican  forms  of  government  and  the  ex- 
ercise of  their  police  powers. 

If  the  president  is  authorized  to  send  civil  officers  into 
a  state,  in  entire  subordination  to  the  United  States,  to 
take  the  life  of  an  honored  citizen,  against  whom  no 
charge  has  been  made,  and  to  shield  such  officers  from  a 
public  fair  trial  for  his  crime,  the  safeguards  incorporated 
in  the  constitution  for  the  protection  of  life,  liberty,  and 
property  amount  to  nothing  but  a  snare  and  delusion. 

If  the  president  has  this  power,  what  would  prevent 
him  from  sending  an  officer  into  any  state  to  take  the 
life  of  any  formidable  adversary,  and  shield  the  culprit, 
who  committed  the  crime,  from  a  trial? 

Equally  as  dangerous  an  invasion  of  the  safeguards  ta 
life,  liberty,  and  property,  incorporated  in  the  constitu- 
tion, arises  out  of  the  modern  use  of  injunction  in  appre- 
hended trespass  cases  by  the  federal  courts. 

Injunctions  are  but  aids  to  courts  of  equity  in  protect- 


ORGANIZATION    OF   JUDICIARY    DKPARTMENT.       255 

ing  the  particular  property  or  property  rights  involved  iu 
the  action  ;  as  they  are  merely  aids  in  chancery  practice, 
they  can  never  be  used  to  give  courts  of  equity  jurisdic- 
tion ;  the  court  of  equity  must  have  jurisdiction  inde- 
pendently of  any  injunction  to  authorize  it  to  issue  a  writ 
of  injunction.  Having  jurisdiction  of  the  action,  it  may 
issue  a  writ  of  injunction  only  to  protect  the  property  in- 
volved in  the  action. 

The  great  commentator,  Mr.  Blackstone,  after  summing 
up  the  jurisdiction  of  courts  of  chancer>^,  says : 

"  This  is  the  business  of  our  courts  of  equity,  which, 
however,  are  only  conversant  with  matters  of  property. 
For  the  freedom  of  our  constitution  will  not  permit  that 
in  criminal  cases  a  power  should  be  lodged  in  any  judge 
to  construe  the  law  otherwise  than  according  to  the  letter. 
This  caution,  while  it  admirably  protects  the  public  lib- 
erty, can  never  bear  hard  on  individuals."     .     .     .'^ 

The  same  author  again  says  : 

"  Not  only  the  substantial  part  or  judicial  decisions  of 
the  law,  but  also  the  formal  part  or  method  of  proceed- 
ing, cannot  be  altered  but  by  parliament ;  for,  if  once 
those  outworks  were  demolished,  there  would  be  an  inlet 
to  all  manner  of  innovation  in  the  body  of  the  law 
itself."     .     .     -t 

Life,  liberty  and  property  are  better  guarded  in  the 
United  States,  because  the  outworks,  as  Mr.  Blackstone 
calls  them,  or  the  safeguards  (as  they  are  called  by  the 
supreme  court  in  the  Milliken  case),  are  incorporated  in 
the  constitution,  and  cannot  be  changed  by  any  depart- 
ment of  the  United  States. 

' '  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  in- 
dictment of  a  grand  jur}\"      .     .     . 


*  El.  Com.,  vol.  I,  p,  92,  t  W.,  p.  142. 


256  CONSTITUTION   OF   THE   UNITED   STATES. 

'*  Nor  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law.  .  .  .  Nor  be  twice  put  in 
jeopardy  of  his  life  and  limb.     .     . 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial  by  an  impartial  jury 
of  the  state  and  district  wherein  the  crime  shall  have 
been  committed,  which  district  shall  have  been  previously 
ascertained  by  law. ' '  * 

' '  No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed."  f 

' '  In  suits  at  common  law,  where  the  value  in  contro- 
versy exceeds  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved. ' '  % 

The  right  of  trial  by  jury  applies  to  every  one  accused 
of  crime  who  is  not  attached  to  the  army  or  navy  or  militia 
in  actual  service. 

"  Neither  the  president  nor  the  congress  nor  the  judi- 
ciary can  disturb  any  one  of  the  safeguards  of  civil 
liberty  incorporated  in  the  constitution,  except  so  far  as 
the  right  to  suspend  in  certain  cases  the  privileges  of  the 
writ  of  habeas  corpus. ''  H 

It  may  be  said  with  equal  force  that  neither  the  presi- 
dent nor  the  congress  nor  the  judiciary  can  deny  to  either 
party  to  a  case  at  common  law,  where  the  value  in  con- 
troversy exceeds  twenty  dollars,  a  trial  by  jury. 

Trespass  is  an  indictable  offense  and  a  violation  of  the 
criminal  law  under  the  common  law ;  still  the  party 
injured  may  bring  a  civil  action  for  the  injury  he  may 
have  suffered  by  reason  of  the  trespass;  but  the  party 
sued  would  be  entitled  to  have  the  action  tried  by  a  jurj^ 

Trespass  being  an  indictable  offense  punishable  by  im- 

*  Amendments  to  Constitution,  5  and  6. 

t  Art.  I,  sec.  9,  Con.  %  Art.  7  of  Amendment. 

II  Ex  parte  Milliken,  4  Wall.,  p.  2. 


ORGANIZATION    OF   JUDICIARY    DEPARTMENT.       257 

prisounient,  it  comes  under  the  classification  of  ''other- 
wise infa7)i07is  crimes,''  which  no  one  can  be  held  to 
answer  for  unless  upon  information  or  indictment  of  a 
grand  jury. 

But  suppose  the  trespassers  be  proceeded  against  in  a 
civil  action,  and  without  regard  to  its  being  an  indict- 
able offense,  still  it  is  an  action  at  common  law,  and  the 
defendant  would  be  entitled  to  a  trial  by  )\xxy  if  the 
value  sued  for  exceeded  twenty  dollars ;  and  courts  of 
equity  could  not  take  jurisdiction  of  the  trespass  for  that 
reason  alone  ;  and  as  courts  of  equity  are  only  conversant 
with  property  and  property  rights,  while  everj'  action  of 
trespass  is  a  punishment  in  damages  against  the  person 
of  the  offender  for  violating  the  penal  laws  of  the  coun- 
try, for  if  there  was  no  law  against  the  act  done  by  the 
defendant  his  acts  would  not  amount  to  a  trespass,  and 
no  damages  could  be  adjudged  against  him. 

But  as  some  of  the  states  have  enacted  statutes  author- 
izing injunctions  in  cases  of  trespass  to  realty  to  prevent 
waste  or  injury  to  the  land  sued  for,  while  the  suit  is 
pending,  it  may  be  contended  that  the  federal  courts 
could  avail  themselves  of  such  state  statutes  and  order 
writs  of  injunction  to  issue. 

The  states  cannot  give  jurisdiction  to  the  federal 
courts,  though  the  states  may  create  legal  rights  which 
the  federal  courts  may  take  hold  and  dispose  of,  pro- 
vided they  are  of  a  character  to  pass  under  the  jurisdic- 
tion of  the  federal  courts  as  prescribed  by  the  constitu- 
tion. 

That  class  of  cases  that  belonged  to  the  exclusive 
jurisdiction  of  courts  of  law,  at  the  time  the  constitution 
was  made  and  adopted,  must  remain  of  exclusive  juris- 
diction in  courts  of  law,  and  neither  the  congress  nor  any 
legislature  can  change  it. 

"In  suits  at  common    law,   where  the  value  in  con- 


258  CONSTITUTION    OF    THE    UNITED    STATES. 

troversy  shall  exceed  twenty  dollars,  the  right  of  trial 
by  jury  shall  be  preserved  ;  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  court  of  the 
United  States  than  according  to  the  rules  of  the  common 
law."  * 

The  rules  of  the  common  law  existing  at  that  time  must 
be  taken  as  the  rules  thereof  referred  to.  For  if  the  rules 
of  the  common  law  could  be  changed  from  what  they 
were  recognized  to  be  at  that  time,  that  article  of  amend- 
ment would  not  have  provided  any  limitation,  and  its 
adoption  would  amount  to  an  idle  act  ;  hence  the  dis- 
tinction between  the  rules  of  the  common  law  and  equity 
practice  existing  at  that  time  must  continue  to  prevail, 
for  the  purposes  of  interpreting  that  article  of  amendment. 

Courts  of  equity  in  England  never  had  jurisdiction 
of  criminal  or  penal  cases  ;  nor  of  actions  sounding  in 
damages.  They  could,  however,  always  require  the 
parties  to  an  action  to  pay  over  the  rents  and  profits  of 
property  involved  in  the  action,  w^hich  was  sometimes 
erroneously  spoken  of  as  damages.  But  in  actions  sound- 
ing in  damages,  the  cause  of  action  arises  out  of  a  wrong- 
ful act  or  acts,  for  which  the  wrongdoer  may  be  punished, 
by  paying  in  damages,  the  amount  of  the  injury  suffered 
by  the  party  suing  for  the  same.  But  no  such  suit  could 
be  brought  until  after  the  law  had  been  violated,  and  the 
wrongful  acts  complained  of  had  been  fully  enacted, 
and  it  would  be  farcical  to  grant  a  writ  of  injunction 
to  restrain  one  from  doing  that  which  he  had  already 
done.  And  to  grant  that  writ  to  prevent  the  wrongful 
acts  from  being  committed,  before  any  act  violating  the 
law  had  been  committed,  must  be  based  alone  on  an  ap- 
prehension that  the  party  enjoined  would  commit  the 
dreaded  trespass.     Under  that  state  of  case  no  cause  o£ 

*  Seventh  Article  of  Amendment  to  the  Constitution. 


ORGANIZATION    OF   JUDICIARY    DEPARTMENT.       259 

action,  either  in  equitj',  or  at  law,  would  exist ;  but  not- 
withstanding the  total  failure  of  a  cause  of  action,  the  in- 
junction would  not  only  deprive  the  person  enjoined  of  his 
personal  liberty,  but  of  the  free  use  of  property  he  had  in 
possession  claiming  as  his  own  without  a  trial,  and  with- 
out due  course  of  law  as  guaranteed  by  the  constitution. 

Furthermore,  the  fine  for  contempt  in  violating  an  in- 
junction is  a  criminal  judgment.  The  supreme  court 
says: 

"  Contempt  of  court  is  a  specific  criminal  offense.  The 
imposition  of  the  fine  was  a  judgment  in  a  criminal  case. 
That  part  of  the  decree  is  as  distinct  from  the  residue  as 
if  it  were  a  judgment  upon  an  indictment  for  perjury 
committed  in  a  deposition  read  at  the  hearing.  This 
court  can  not  take  cognizance  of  a  criminal  case  only 
upon  a  certificate  of  division  of  opinion. "     .     .     .  * 

This  was  a  case  wherein  an  action  was  pending  by  the 
steamship  company  to  enforce  a  contract  entered  into  for 
the  lease  of  a  certain  part  of  the  wharf  of  the  city  of 
New  Orleans,  in  the  circuit  court  of  the  United  States, 
and  the  mayor  of  that  city  caused  an  action  to  be  insti- 
tuted in  the  state  court  to  settle  the  same  matters  that 
were  involved  in  the  case  in  the  United  States  court. 
The  offense  having  been  completely  committed,  the  fine 
was  clearly  a  judgment  in  a  criminal  case,  and  the  mayor 
was  entitled  to  an  indictment  or  presentment  by  a  grand 
jury  and  a  verdict  of  a  petit  jur^'. 

There  is,  however,  a  class  of  contempts  that  the  courts 
of  justice  must  have  jurisdiction  to  dispose  of  without  an 
indictment  of  a  grand  jury  or  the  verdict  of  a  petit  jury. 
This  class  of  contempts  has  been  provided  against  by  act 
of  congress  in  the  following  language  : 


*  2otli  Wall.  387,  New  Orleans  v.  Steamship  Co. 


26o  CONSTITUTION   OF   THi;   UNITED   STATES. 

Sec.  725.  "  The  said  courts  shall  have  power  to  impose 
and  administer  all  necessary  oaths,  and  to  punish,  by  fine 
or  imprisonment,  at  the  discretion  of  the  court,  contempts 
of  their  authority  ;  provided,  that  such  power  to  punish 
contempts  shall  not  be  construed  to  extend  to  any  cases 
except  misbehavior  of  any  person  in  their  presence,  or  so 
near  thereto  as  to  obstruct  the  administration  of  justice, 
the  misbehavior  of  any  of  the  officers  of  said  courts  in 
their  official  transactions,  and  the  disobedience  or  resist- 
ance by  any  such  officer,  or  by  any  party,  juror,  witness, 
or  other  person,  to  any  lawful  writ,  process,  order,  rule, 
decree,  or  command  of  the  said  court."  * 

If  this  provision  of  congress  be  construed  to  apply  to 
present  and  continuing  contempts  committed  in  the  pres- 
ence of  the  court,  or  contempts  of  jurors,  witnesses,  and 
the  officers  of  the  court  in  refusing  to  obey  the  rules 
and  orders  of  court  during  its  sesssions,  the  entering  of 
fines  or  orders  of  imprisonment  until  the  offender  con- 
sents to  purge  himself  of  the  contempt,  is  the  only 
means  of  maintaining  the  courts  in  the  discharge  of 
their  respective  duties  within  their  jurisdiction.  Such 
acts  of  contempt  would  amount  to  assaults  on  the  dignity 
and  proceedings  of  the  court,  the  judge,  by  imposing  a 
fine  or  ordering  the  offender  to  prison  until  he  purge  him- 
self of  the  contempt  and  surrender  to  ever>^  lawful  order 
of  the  court,  would  simply  be  maintaining  the  court 
by  the  only  means  within  the  power  of  the  court  to  pro- 
tect itself.  This  power  of  self-protection  is  inherent  in 
the  courts,  and  must  be  a  part  of  the  institution  of  every 
court ;  furthermore,  such  contempts  are  always  committed 
within  the  personal  knowledge  of  the  judge,  and  need 
no  evidence. 


*  Revised  Statutes  U.  S.,  Sec.  725. 


ORGANIZATION    OF   JUDICIARY    DEPARTMENT.        26 1 

But,  if  said  act  of  congress  be  construed  to  apply  to 
contempts  that  have  already  been  completely  committed, 
unless  committed  in  the  presence  of  the  court,  that 
act  invades  the  execution  of  the  criminal  and  penal  laws, 
and  is  in  conflict  with  the  safeguards  of  the  constitution 
for  the  protection  of  life,  liberty  and  property  ;  there- 
fore, they  must  be  held  to  be  unconstitutional. 

Injunctions  as  aids  to  courts  of  equity,  in  equity  cases 
are  regulated  by  positive  law.  But,  as  they  are  fordidden 
by  the  constitution  of  England  as  well  as  by  the  constitution 
of  the  United  States,  in  penal  or  criminal  cases,  or  in  civil 
cases  sounding  in  damages,  they  can  not  be  regulated  by 
any  positive  law ;  therefore,  whenever  they  are  issued  in 
this  class  of  cases,  the  judge  w^ho  grants  them  necessarily 
makes  the  law  for  granting  them  with  the  expectation  of 
executing  the  law  of  his  own  making,  and  must  necessarily 
reserve  to  himself  the  right  to  prescribe  the  punishment  for 
disobeying  his  injunction,  which  must  always  be  held  back 
until  after  the  offense  of  disobedience  has  been  heard  by 
him,  thereby  making  the  punishment  ex  post  facto. 
Therefore,  injunctions  in  this  class  of  cases,  not  only  ab- 
negates the  safeguards  of  the  constitution  for  the  protection 
of  life,  liberty  and  property,  but  they  disregard  and  nullify 
the  greatest  and  most  valuable  principle  of  the  common  law, 
and  of  the  English  civilization  ;  that  of  separating  the 
law  making  jurisdiction  from  the  law  executing  jurisdic- 
tion. Which  is  the  primary  principle  of  both  individual 
and  popular  liberty.  It  is  the  fountain  from  which  pop- 
ular government  under  the  English  civilization  flows. 
Without  this  fountain,  every  channel  that  nourishes 
free  government  would  dry  up,  and  all  would  become 
slaves  to  the  magistrate  having  jurisdiction  to  make 
and  execute  whatever  laws  his  whims  may  prompt. 
So  that  the  purer  the  fountain  is  kept,  the  freer   the 


262  CONSTITUTION   OF   THE    UNITED   STATES, 

people  are  bound  to  continue.  And,  the  several  safe- 
guards to  life,  liberty  and  property  being  branches  flow- 
ing from  this  fountain  to  irrigate  and  nourish  civil  lib- 
erty, they  must  be  kept  pure  also  to  maintain  the  free- 
dom of  the  people.  These  principles  can  not  be  too  crit- 
ically or  clearly  guarded  by  the  great  body  of  the  people 
themselves. 

The  objections  to  injunctions  in  this  class  of  cases  ap- 
ply with  equal  force  to  punishments  without  a  verdict  of 
a  jury,  in  trespass  to  property  in  the  custody  of  a  re- 
ceiver of  a  court  in  an  equity  case.  And  in  cases  with  a 
broad-spread  injunction,  commonly  called  blanket  injunc- 
tions, in  suits  properly  brought  in  equity. 

These  encroachments  on  the  safeguards  of  life,  liberty 
and  property  are  the  outgrowth  of  the  theory  that  the 
supreme  court  is  vested  with  exclusive  jurisdiction  to  in- 
terpret the  constitution,  which  necessarily  includes  power 
to  change  the  constitution  by  interpretation.  And  there 
are  but  few  if  any  who  can  resist  the  intoxicating  influ- 
ence of  such  oligarchic  powers.  Hence,  these  encroach- 
ments on  the  rights  of  the  states  and  of  the  people,  and 
on  the  several  departments  of  the  United  States,  by  the 
judiciary,  are  ascribable  to  a  natural  weakness  of  man- 
kind under  a  bad  system,  and  not  to  a  bad  motive  on  the 
part  of  the  judges  of  the  supreme  court. 

No  government  can  be  stable  or  rest  on  fixed  constitu- 
tional principles  as  long  as  it  can  be  changed  by  the  judi- 
ciary thereof,  by  interpretation ;  for  the  judges  them- 
selves are  liable  to  change,  and  no  judge  or  set  of  judges 
can  hold  ofl&ce  always,  even  where  they  are  selected  for 
life,  as  all  must  die  sooner  or  later,  and  whenever  a  new 
man  is  installed  in  oflfice  as  judge  he  carries  his  political 
notions  with  him,  and  they  will,  to  some  extent,  give 
coloring  to  his  judicial  views;  and  as  every  case  arising 


ORGANIZATION  OF  JUDICIARY  DEPARTMP:NT.         263 

under  the  constitution  or  an  act  of  congress  in  the  United 
States  necessarily  partakes  of  a  political  character,  the 
constitution  will  be  changed  from  time  to  time  to  make  it 
correspond  with  the  political  views  of  the  judges  who 
may  be  on  the  bench  at  the  time  the  court  is  called  on  to 
interpret  that  instrument. 

The  supreme  court  upon  two  notable  occasions  so 
changed  its  rulings  as  to  sustain  the  views  of  one  po- 
litical party  over  the  views  of  the  opposing  political 
party.  One  of  said  cases  related  to  treasury  notes, 
commonly  called  greenbacks,  in  which  that  court  first 
decided  that  the  legal-tender  feature  was  unconstitu- 
tional, and  in  a  short  time  thereafter  the  legal-tender  fea- 
ture was  held  to  be  constitutional  and  valid.  The  other 
case  related  to  the  power  of  congress  to  lay  an  income 
tax.  The  court  had  adhered  to  the  power  of  congress 
to  lay  that  tax  on  excise  principles  for  over  a  half  cen- 
tury, and  at  one  session  of  that  court  held  the  income 
tax  valid,  but  granted  a  rehearing  and  re-argument,  and 
at  the  next  session  of  the  court  overruled  its  former 
ruling,  and  held  that  income  tax  to  be  a  direct  tax, 
and  that  it  must  be  laid  by  apportioning  it  among  the 
states  according  to  enumerations  under  acts  of  con- 
gress. * 

I  do  not  complain  of  that  court  exercising  the  inherent 
right  of  all  courts  to  overrule  its  former  decisions,  to  cor- 
rect its  own  errors  ;  nor  do  I  intend  to  intimate  an  opin- 
ion as  to  which  ruling  was  correct,  the  first  or  second,  in 
said  cases,  but  refer  to  these  two  cases  out  of  quite  a 
number  because  they  are  probably  the  most  public  cases 
that  have  been  overruled  by  that  court,  wherein  any  of 
the  provisions  of  the  constitution  have  been  changed. 

Pollock  V.  I/oan,  etc.,  Co.,  157  U.  S.  429. 


264  CONSTITUTION    OF   THE    UNITED    STATES. 

Courts  ought  always  to  correct  their  own  errors,  when- 
ever they  discover  them,  without  hesitation ;  but  no 
court  has,  or  ought  to  have,  authority  to  change  the  su- 
preme law  of  the  land,  even  for  the  purpose  of  correct- 
ing its  errors,  or  for  any  other  purpose :  though  courts 
may  develop  new  principles  of  the  common  law,  pro- 
vided such  new  principles  do  not  conflict  with  the 
letter  of  the  fundamental  principles  of  freedom  and  the 
safeguards  of  life,  liberty  and  property,  under  the  or- 
ganic law. 

The  constitution  is  the  only  authority  for  the  existence 
of  either  of  the  departments  of  the  United  States ;  it 
was  by  that  instrument  each  of  them  was  ordained,  and 
neither  one  of  them  is  authorized  to  exercise  any  power 
not  expressly  granted  to  it  by  that  instrument,  and  that 
instrument  expressly  reserves  to  the  people  of  the  states 
the  right  to  alter  or  amend  the  same  at  will.* 

This  article  five  shows  a  compact  between  the  people 
of  the  states  ;  but  neither  the  United  States,  nor  either 
of  the  departments  thereof,  nor  any  oflScer  thereof,  can 
possibly  have  been  parties  to  that  compact,  for  neither 
one  of  them  had  any  existence  until  the  compact  was 
completed  and  ratified,  and  every  power  granted  by  the 
constitution  to  either  of  the  departments  or  officers  of  the 
United  States,  was  a  gratuity,  and  may  be  revoked  at 
will  by  those  who  granted  them. 

But  if  exclusive  authority  to  interpret  the  grant  of 
powers  by  the  constitution  be  vested  in  either  or  all  of 
the  three  several  departments,  the  people  of  the  states  are 
excluded  from  exercising  that  authority,  and  they  can 
not  alter  or  amend  that  instrument  without  the  assent  of 
the  tribunal  having  exclusive  authority  to  interpret  the 

*Art.  5,  Con. 


ORGANIZATION    OF    JUDICIARY    DEPARTMENT.       265 

same,  and   the  sovereignty  would  necessarily  reside  in 
that  authority  and  not  in  the  people. 

All  judicial  powers,  as  well  all  other  powers  of  gov- 
ernment, emanate  from  the  people,  and  they  have  as 
much  right  to  regulate  their  judiciary  organization  as 
they  have  to  regulate  their  legislative  or  executive  or- 
ganizations. 

"  The  original  power  of  judicature,  by  the  fundamental 
principles  of  society  is  lodged  in  the  society  at  large."  * 

And  the  people  must  retain  exclusive  authority  to  in- 
terpret for  themselves  every  grant  of  power  they  may 
make,  or  they  will  be  compelled  to  surrender  their  sov- 
ereignty and  freedom  to  the  tribunal  they  vest  wdth  ex- 
clusive authority  to  interpret  the  same. 

If  the  constitution  had  not  been  changed  by  the  com- 
mittee on  style,  not  only  each  department  of  the  United 
States,  but  the  courts  of  last  resort  of  the  states,  having 
appellate  jurisdiction  of  actions  in  the  states,  would  have 
been  vested  with  equal  authority  to  interpret  the  constitu- 
tion ;  but  as  neither  of  them  had  a  right  to  bind  any  other 
department  or  court  to  its  own  interpretation,  the  courts 
of  last  resort  of  the  several  states,  and  the  supreme 
court  of  the  United  States,  would  have  tried  to  come  to- 
gether, and  to  agree  to  the  true  and  proper  meaning  of 
ever>'  provision  in  the  constitution,  as  was  intended  by 
the  convention  that  ordained  it,  and  as  the  people  of  the 
states  understood  them  when  they  were  ratified  by  con- 
ventions of  the  states,  which  would  have  given  the  bene- 
fit of  all  of  the  judiciary  authority,  both  state  and  fed- 
eral, to  interpret  that  instrument. 

It  is  true  that  the  courts  of  last  resort  of  the  several 
states  are  vested  with  appellate  jurisdiction  of  all  cases 
arising  under  the  constitution  of  their  respective  states  ; 

*  Bl.  Com.,  vol.  I,  p.  267. 


266  CONSTITUTION   OF   THE   UNITED   STATES. 

but  the  constitutions  of  the  respective  states  are  Umited 
by  that  of  the  United  States,  and  to  the  extent  of  the 
limitations  named  therein,  the  state  constitutions  are 
subordinate  to  that  of  the  United  States.  The  judges 
of  the  several  states  are  elected  or  appointed  for  lim- 
ited terms,  and  are  removable  by  address  of  the  legis- 
lative department  thereof,  hence,  should  the  judges  of 
any  state  betray  an  inclination  to  disregard  the  reserved 
powers  of  the  people,  the  people  would  defeat  their  re- 
election or  re-appointment,  and  should  their  rulings  be 
deemed  dangerous  to  their  liberties,  the  people  then 
could  elect  a  legislature  that  would  remove  them  by  ad- 
dress. 

But  some  may  share  the  Hon.  Govemeur  Morris'  fears 
of  the  ' '  legislative  lion  ' '  of  the  states  ;  those  fears,  how- 
ever, are  groundless,  for  the  congress  is  authorized  to 
enact  laws  relating  to  every  subject  of  government  vested 
in  either  of  the  departments  of  the  United  States,  so 
that  in  every  case  where  a  state  legislature  should  at- 
tempt to  invade  any  authority  of  the  United  States  by 
state  legislation,  the  congress  could  check  it  by  an  act  of 
congress  on  the  subject,  which  would  give  the  supreme 
court  of  the  United  States  appellate  jurisdiction  of  all 
cases  under  such  acts. 

All  laws  that  may  be  enacted  must  be  in  conformity 
with  the  constitution,  else  the  acts  would  be  no  law 
at  all,  and  each  department  must  constitute  a  part  of  each 
of  the  other  two  departments,  and  a  part  of  the  government 
of  the  United  States,  and  each  is  vested  with  separate 
functions  ;  hence,  the  judiciary  must  have  jurisdiction  of 
all  laws  enacted  by  the  congress,  as  all  acts  of  the  con- 
gress are  acts  of  the  government  as  agent  of  the  sover- 
eign authority.  But  the  constitution  was  ordained  by  a 
higher  authority,  and  is  the  charter  of  each  department 
and  of  the  government  itself,  and  is  above  the  govern- 


ORGANIZATIOX    OF   JUDICIARY    DEPARTMENT.       267 

ment  and  all  connected  therewith,  and  to  give  to  either 
department  thereof,  or  to  all  of  them  combined,  sole  au- 
authority  to  interpret  the  constitution,  necessarily  in- 
volves authority  to  change  or  to  destroy  the  same,  which 
was  never  contemplated  by  the  makers  of  that  instru- 
ment. 

By  the  provisions  of  article  five  of  the  constitution, 
any  mischief  that  may  be  done  by  the  supreme  court  or 
either  of  the  departments,  may  be  repaired  by  a  conven- 
tion of  the  United  States,  and  the  ratification  thereof  by 
conventions  in  three- fourths  of  the  states. 

Or,  if  Justice  Story  correctly  interprets  said  article 
five  in  his  "Commentaries  on  the  Constitution,"  an)- 
mischief  the  judiciary  may  do  may  be  remedied  by 
amendments  proposed  by  the  congress  and  ratified  by  the 
legislatures  of  three-fourths  of  the  states. 


268  CONSTITUTION   OF   THE  UNITED   STATES. 


CHAPTER    IX. 

INTERCOURSE    AND   TRADE    BETWEEN    THE  STATES,  AND 
POWER   OF   CONGRESS    TO   ADMIT    NEW   STATES. 


Article  IV. 
Section  i. 

Par.  I.  "  Full  faith  and  credit  shall  be  given  in  each 
state  to  the  public  acts,  records  and  judicial  proceedings 
of  every  other  state.  And  the  congress  may  by  general 
laws  prescribe  the  manner  in  which  such  acts,  records 
and  proceedings  shall  be  proved  and  the  effect  thereof. ' ' 

The  union  of  the  states  would  be  incomplete  and  ex- 
tremely cumbersome  without  faith  and  credit  being  given 
by  the  authorities  of  each  state  to  the  public  acts,  records 
and  judicial  proceedings  of  every  other  state  in  the  union  ; 
the  first  clause  of  this  paragraph  may,  therefore,  be  said 
to  constitute  one  of  the  most  valuable  provisions  of  the 
constitution  in  support  of  the  union. 

But  the  second  clause  tends  to  weaken  the  union,  and 
it  can  not  be  enforced  without  depriving  the  states  of  the 
right  to  exercise  eminent  domain  over  the  territory  within 
their  respective  borders  ;  and  to  prescribe  their  own  rules 
of  evidence,  to  prove  their  public  acts,  records  and  judi- 
cial proceedings  ;  though  the  congress  acting  on  this  latter 
provision  did  at  an  early  day  enact  a  general  law  on  the 
subject.  Yet  the  rules  of  evidence,  and  the  evidence 
required  by  the  respective  states  to  establish  the  title  to 
real  estate  or  prove  their  public  acts,  records  and  pro- 


INTERCOURSE   AND   TRADE,    ETC.  269 

ceedings  of  the  courts  thereof,  are  recognized  by  the 
courts  of  the  several  states  aud  by  the  courts  of  the 
United  States,  as  the  paramount  law  on  the  subject,  not- 
withstanding the  provision  of  the  constitution  making  all 
laws  passed  in  pursuance  of  the  constitution  the  supreme 
law  of  the  land. 

However,  this  clause  does  not  require,  nor  is  it  neces- 
sary for  the  congress  to  pass  any  law  on  the  subject  to 
aid  in  putting  the  constitution  into  operation  ;  therefore, 
while  the  congress  is  authorized  to  enact  a  general  law 
on  the  subject,  such  a  law  would  not  be  in  pursuance  of 
the  constitution,  and  under  a  strict  construction  is  not  the 
supreme  law.  This  clause  was  not  in  the  draft  of  the  con- 
stitution as  it  was  when  turned  over  to  the  committee  on 
style,  and  after  it  was  reported  back  to  the  convention 
by  that  committee,  the  journal  of  the  convention  fails  to 
show  any  discussion  or  mention  of  it  in  any  way.  Why 
that  committee  added  this  clause  to  this  section  can  not 
be  known  and  must  be  left  to  conjecture  ;  for  it  does  not 
improve  the  style  and  must  remain  a  dead  letter,  or  must 
destroy  the  right  of  the  people  of  the  respective  states,  to 
manage  their  domestic  affairs. 

Section  2. 

Par.  I .  "  The  citizens  of  each  .state  shall  be  entitled  to 
all  the  privileges  and  immunities  of  citizens  in  the  sev- 
eral states. ' ' 

Par.  2.  "A  person  charged  in  any  state  with  treason, 
felony  or  other  crime,  who  shall  flee  from  justice  and  be 
found  in  another  state,  shall,  on  demand  of  the  executive 
authority  of  the  state  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  state  having  jurisdiction  of  the 
crime. 


270  CONSTITUTION   OF  THE)   UNITED   STATES. 

Par.  3.  "No  person  held  to  service  or  labor  in  one 
state  under  the  laws  thereof  escaping  into  another,  shall 
in  consequence  of  any  law  or  regulation  therein  be  dis- 
charged from  such  service  or  labor  ;  but  shall  be  de- 
livered up  on  claim  of  the  party  to  whom  such  service  or 
labor  may  be  due." 

As  said  in  discussing  the  power  to  regulate  commerce, 
the  first  paragraph  of  this  section  contains  an  important 
provision  of  the  compact  of  the  union  between  the  states. 
For  unless  the  citizens  of  each  state  could  go  into  other 
states  to  trade,  and  be  civilly  treated  while  there,  and  be 
authorized  to  buy  and  sell  property  of  every  description 
on  equal  terms  with  the  citizens,  and  hold,  own  and 
transmit  the  title  thereof  on  the  same  terms,  there  could 
be  no  union  of  the  states. 

It  will  be  observ'ed  that  this  paragraph  does  not  re- 
quire the  states  to  extend  to  the  citizens  of  the  other 
states  equal  rights  with  its  own  citizens,  but  only  requires 
the  states  to  extend  to  citizens  of  the  other  states  the 
same  privileges  and  immunities  extended  to  its  own  citi- 
zens ;  consequently,  the  citizens  of  sister  states  may  do 
all  things  in  any  state  that  the  citizens  may  do,  except  to 
vote  and  hold  oflSces  therein. 

The  second  paragraph,  providing  for  the  capture  and 
return  of  those  who  are  charged  with  treason,  felony,  or 
other  crime,  is  a  part  of  the  first,  and  necessary  to  the 
maintenance  of  the  union,  and  to  enable  each  state  not 
only  to  protect  its  own  citizens  against  lawlessness,  but 
to  protect  the  citizens  of  sister  states. 

Sectio7i  J. 
Par.  I .    "  New  states  may  be  admitted  by  the  congress 
into   this  union  ;  but    no  new  state  shall    be  formed  or 
erected  within  the  jurisdiction  of  any  other  state  ;   nor 


INTERCOURSE   AND   TRADE,    ETC.  271 

any  state  be  formed  by  the  junction  of  two  or  more 
states,  or  parts  of  states,  without  the  consent  of  the  legis- 
lature of  the  states  concerned,  as  well  as  of  the  congress." 

Par.  2.  "The  congress  shall  have  power  to  dispose  of 
and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United 
States ;  and  nothing  in  this  constitution  shall  be  so  con- 
strued as  to  prejudice  any  claims  of  the  United  States,  or 
of  any  particular  state." 

To  give  to  this  section  the  broad  meaning  the  language 
indicates,  makes  it  conflict  with  other  provisions  of  the 
constitution,  and  imbues  it  with  a  latent  ambiguity,  to 
be  explained  by  other  provisions  of  the  constitution  and 
the  proceedings  in  the  convention  relating  thereto  and 
the  history  of  the  settlement  of  the  colonies  and  their 
charters. 

The  preamble  to  the  constitution  shows  that  this  union 
is  to  consist  of  American  states,  or,  as  expressed  therein, 
"  United  States  of  America." 

Section  four  of  article  four  requires  the  United  States 
to  guarantee  to  each  state  a  republican  form  of  govern- 
ment, and  no  new  state  can  be  admitted  on  any  other 
terms  than  on  full  and  complete  equality  ;  therefore  no 
new  state  can  be  admitted  unless  it  has  a  republican  form 
of  government.  These  two  conditions  are  so  plainly 
expressed  that  they  can  not  be  disputed. 

But  the  third  condition  has  been  made  somewhat  ob- 
scure by  the  decision  of  the  supreme  court  in  the  Dred 
Scott  case  (in  which  that  court  in  the  course  of  its  argu- 
ment intimated  that  the  congress  probably  had  authority 
to  naturalize  Indians  of  the  various  tribes  or  nations)  ; 
this  third  qualification,  therefore,  may  be  said  to  be 
ambiguous ;  and  its  ambiguity  may  be  explained  by  the 
proceeding  of  the  convention  and  the  relation  of  the  citi- 


272  CONSTITUTION   OP   THE  UNITED   STATES. 

zens  and  inhabitants  of  the  several  states  to  their  re- 
spective states  under  state  laws.  However,  the  purpose 
of  the  supreme  court  in  that  case  was  to  show  that  the 
African  negroes  were  incapable  of  being  admitted  into 
the  family  of  sovereign  people  on  equal  terms,  jurisdic- 
tion and  powers  with  the  white  people,  and  it  did  not 
take  into  full  consideration  the  status  of  the  Indian 
nations  and  inhabitants  thereof  to  the  states  and  the 
union. 

But  the  court  did  say  in  that  case  that : 
' '  The  vv^ords  '  people  of  the  United  States '  and  '  citi- 
zens'  are  synonymous  terms.  They  both  describe  the 
political  body  who,  according  to  our  republican  institu- 
tions, form  the  sovereignty,  and  who  hold  the  power 
and  conduct  the  government  through  their  representatives. 
They  are  what  we  familiarly  call  the  '  sovereign  people,' 
and  every  citizen  is  one  of  this  people,  and  a  constituent 
member  of  this  sovereignty. ' '  ^ 

' '  Every  person  and  every  class  and  description  of  per- 
sons, who  were  at  the  time  of  the  adoption  of  the  con- 
stitution recognized  as  citizens  in  the  several  states, 
became  also  citizens  of  this  new  political  body  ;  but  none 
other ;  it  was  formed  by  them  and  for  them  and  their 
posterity,  but  for  no  one  else.f 

By  the  fifth  section  of  the  ninth  article  of  the  con- 
federation each  state  was  required  to  furnish  its  quota  of 
militia  in  proportion  to  the  white  inhabitants  thereof 
only. 

The  naturalization  act  passed  by  the  congress  in  1790 
authorized  the  naturalization  of  aliens  being  free  white 
persons  only.  And  many  of  the  members  of  the  con- 
gress that  passed  that  naturalization  act  had  been  mem- 

*  igth  Howard,  p.  404.  t  19th  Howard,  p.  406. 


INTERCOURSE   AND   TRADE,  ETC.  273 

bers  of  the  convention  that  framed  the  constitution,  and 
were  among  our  ablest  statesmen  and  lawyers.  * 

Therefore  that  naturalization  act  is  entitled  to  great 
respect,  as  a  contemporaneous  interpretation  of  the  con- 
stitution as  to  what  class  of  people  were  entitled  to  be 
taken  into  the  family  of  sovereign  rulers  of  the  United 
States.  But  as  strong  as  this  evidence  is,  we  need  not 
stop  with  it  alone. 

Before  the  formation  of  the  more  perfect  union  by 
which  the  people  of  the  .states  were  taken  into  it,  as  well 
as  the  political  organization  of  the  states,  most  of  the 
states  had  laws  prohibiting  white  people  from  marrying 
negroes,  Indians  or  mulattoes  ;  though  a  few  of  the  states 
had  omitted  to  include  Indians  in  their  laws  relating  to 
marriage. 

Indians,  negroes  and  mulattoes,  whether  slave  or  free, 
being  excluded  from  the  militia  force  of  the  states,  and 
being  prohibited  from  intermarrying  with  the  white  peo- 
ple, they  could  not  have  constituted  any  part  of  the  sov- 
ereign people,  who  ordained  and  established  the  con- 
stitution, or  nation,  of  the  United  States  of  America; 
but  it  has  been  suggested  that  the  negroes  are  now 
citizens  of  the  United  States,  and  of  the  state  wherein 
they  reside.  These  suggestions  come  from  those  who 
have  not  closely  examined  into  the  intent  and  meaning  of 
the  fourteenth  and  fifteenth  amendments  to  the  constitu- 
tion. 

The  first  section  of  the  fourteenth  amendment  simply 
declares  that,  "all  persons  born  or  naturalized  in  the 
United  States  and  subject  to  the  jurisdiction  thereof  are 
citizens  of  the  United  States,  and  of  the  state  wherein 
they  reside. ' ' 

But  the  second  section  thereof  concedes  that  declara- 


*  19th  Howard,  p.  406. 


274  CONSTITUTION   OP   THE  UNITED  STATES. 

tion  to  be  untrue  by  offering  a  revv^ard  to  the  states  to 
permit  the  persons  indicated  the  right  to  vote  in  certain 
elections,  among  which  the  right  to  vote  for  delegates  to 
conventions  was  not  named. 

If  the  negroes  had  been  made  equal  sovereign  citizens, 
by  that  amendment,  with  the  white  people,  they  would 
have  a  legal  right  to  aspire  to  the  hand  in  marriage  of 
the  highest  lady  in  the  land,  and  no  law  could  be  passed 
by  any  state  to  deny  them  that  right ;  no  amendment  to 
the  constitution,  that  would  open  the  parlors  of  the  white 
people  to  the  equal  approach  and  entrance  of  the  negro 
race,  would  have  been  ratified  by  the  states ;  it  may, 
therefore,  be  assumed  that  the  draftsmen  of  that  amend- 
ment intentionally  avoided  making  the  negroes  sovereign 
citizens.  No  one  can  be  a  citizen  of  the  United  States 
unless  he  is  a  citizen  of  one  of  the  states,  for  that  would 
destroy  the  fitness  of  the  United  States  to  execute  its 
trusts  in  protecting  the  citizens  of  all  the  states  alike. 
If  the  United  States  could  have  citizens  independently  of 
those  of  the  states,  it  would  not  be  competent  to  repre- 
sent the  states,  for  to  the  extent  of  the  interest  of  the 
citizens  of  the  United  States,  its  interest  would  be  hostile 
to  that  of  the  state  ;  but  as  this  question  will  be  fully  dis- 
cussed in  reviewing  the  fourteenth  and  fifteenth  amend- 
ments to  the  constitution,  further  notice  of  it  is  deferred 
until  then. 

The  fourth  condition  or  limitation  on  the  power  of  con- 
gress to  admit  new  states,  viz.,  that  they  must  be  con- 
tiguous to  the  body  of  American  states,  requires  a  more 
minute  and  extensive  examination  into  the  action  of  the 
convention,  and  of  the  states,  and  of  circumstances  relating 
to  the  granting  of  that  authority  to  the  congress. 

As  has  been  said  heretofore  in  this  review,  every  na- 
tion must  have  a  people  associated  together  as  one  peo- 


INTERCOURSE   AND   TRADE,  ETC.  275 

pie,  or  body  politic,  or  national  family  (as  they  are  some- 
times called),  and  that  body  politic,  or  national  family, 
must  own  and  hold  exclusive  possession  of  a  certain  and 
known  part  of  the  globe,  and  have  a  political  policy  or 
government  of  some  sort. 

Hence,  everj^  nation  consists  of  a  certain  people  associ- 
ated as  one  people,  owning  a  certain  part  of  the  globe. 
The  territory  they  have  appropriated  to  their  exclusive 
use  is  a  necessary  part  of  the  nation,  and  it  is  utterly  im- 
possible to  pass  the  sovereign  title  to  the  territory,  with- 
out also  passing  sovereign  control  over  the  inhabitants 
thereof  in  the  same  deed  or  act  of  cession,  unless  the  sov- 
ereign control  over  the  inhabitants  should  be  reserved  by 
the  deed  of  cession  ;  and  no  nation  would  be  willing  to 
buy  the  territory  on  such  terms.  In  the  treaties  ceding 
the  Floridas  and  Louisiana  province  to  the  United  States, 
it  was  agreed  in  each  treaty  that  the  inhabitants  should 
be  taken  into  the  national  family  of  the  United  States, 
but  the  sovereign  control  over  the  inhabitants  passed  by 
the  treaty  in  each  case  to  the  United  States  ;  in  one  case 
the  sovereignty  over  them  was  ceded  by  the  kingdom  of 
Spain,  and  in  the  other  by  the  republic  of  France,  without 
consulting  the  wishes  of  the  inhabitants  conveyed. 

No  people  who  authorize  their  government  to  trade 
them  off,  by  the  sale  or  transfer  of  the  territory  they  in- 
habit, can  possibly  be  free,  nor  can  any  people  who  au- 
thorize their  government  to  change  the  race  or  charac- 
ter of  the  people  who  constitute  the  body  politic  of  the 
nation,  either  by  allowing  a  lower  grade  or  race  of 
people  to  take  part  in  managing  the  affairs,  or  by  pur- 
chasing them  as  a  part  of  a  territory,  particularly  if  this 
lower  grade  or  race  so  purchased  are  to  be  permitted  to 
take  part  in  the  management  of  the  nation,  as  equals  with 
the    former    national    family   or    body    politic    thereof. 


276  CONSTITUTION   OF   THE   UNITED  STATES. 

While  many  nations  authorize  the  purchase  and  owner- 
ship of  provinces,  with  the  right  of  sovereignty  over  the 
inhabitants  thereof,  I  do  not  know  of  a  single  nation 
whose  government  has  authority  to  dispose  of  any  part 
of  the  territory  that  constitutes  the  nation  proper,  or  any 
part  of  the  class  of  people  who  constitute  the  body  poli- 
tic of  the  nation  ;  or  that  has  any  authority  to  change 
the  character  of  the  people  composing  the  body  politic, 
either  by  extending  the  rights  and  privileges  of  the  na- 
tional family  to  a  lower  grade  of  people,  or  by  taking  a 
lower  grade  of  people  into  the  national  family  by  pur- 
chasing the  territory  they  inhabit.  However,  the  right 
of  franchise  has  often  been  extended  to  the  same  race  of 
people,  and  the  right  of  citizenship  was  extended  in 
Rome,  but  to  the  same  race  of  people.  The  only  attempt 
to  degrade  the  national  family  that  I  know  of  is  chargeable 
to  the  United  States,  in  its  attempting  to  elevate  the  na- 
tive-bom of  African  descent — which  proved  a  failure — 
and  the  more  recent  attempt  to  raise  the  low  grade  or 
race  of  people  inhabiting  the  Philippine  and  other 
islands — which  is  as  likel}^  to  prove  a  failure.  "Whether 
the  United  States  has  a  sovereign  government  or  not  is 
of  little  consequence,  so  far  as  this  question  extends. 

Since  the  explosion  of  the  doctrine  of  the  divine  right 
of  kings,  we  are  forced  to  look  to  the  people  as  the 
original  source  of  power,  and  since  man  is  recognized, 
by  the  whole  of  Christendom,  to  have  been  endowed  by 
the  great  Ruler  of  the  Universe  with  free  agency,  and  as 
free  agency  and  sovereignty  are  equivalent  to  each  other, 
man  must  be  recognized  as  a  sovereign  by  gift  of  nature  ; 
so  that  whenever  sovereignty  is  lodged  in  a  government, 
it  must  be  so  lodged  by  authority  of  the  people.  And 
as  no  government  can  exist  without  an  association  of 
people  into  one  body  or  national  family,  the  body  politic 


INTERCOURSE   AND   TRADE,    ETC.  277 

of  the  nation,  or  national  family,  must  continuously  suc- 
cor and  feed  the  sovereignty  as  lodged  in  the  govern- 
ment ;  for  they  can  no  more  part  with  their  sovereignty 
than  they  can  with  their  free  agency,  though  they  may, 
by  voluntar>-  engagement,  oblige  themselves  by  compact 
to  maintain  sovereignty  in  their  government  by  a  con- 
tinual flow  of  their  respective  sovereignty  to  the  govern- 
ment. Hence  every  government  that  is  vested  with  sov- 
ereignty derives  it  by  compact  between  the  members  of 
the  body  politic,  consisting  of  the  people  who  constitute 
the  nation,  whether  the  government  thereof  was  formed 
by  compact  or  the  result  of  growth.  Authority  in  the 
government  to  destroy  or  to  change  the  body  politic 
from  which  it  must  continue  to  draw  its  sovereign  au- 
thority, involves  authority  to  destroy  itself,  or  to  change 
its  own  character  without  consulting  the  people  engaged 
in  feeding  and  keeping  it  alive  ;  for  when  the  body  poli- 
tic that  gives  it  succor  and  life  is  changed  or  destroyed,  the 
government  must  cease  to  exist,  unless  it  be  built  anew. 
The  sovereign  authority  of  England  is  lodged  with  the 
parliament  and  king  of  that  realm  ;  but  they  would  not 
dare  to  interfere  with  the  body  politic  of  that  kingdom. 
Should  the  parliament  and  king  of  that  nation  undertake 
to  extend  to  Canada,  or  an}-  other  province  of  that  na- 
tion, equal  representation  in  the  British  parliament,  -with 
the  right  to  vote  on  questions  involving  the  policy  of 
that  kingdom,  it  would  be  denounced  as  revolutionar)'  and 
void,  and  the  king  forced  to  prorogue  that  parliament  and 
call  another.  Inasmuch  as  such  an  undertaking  would 
be  the  exercise  of  rights  inalienable  from  the  people,  they 
could  not  have  been  granted,  and  should  be  held  by  the 
people  of  the  kingdom  as  unconstitutional. 

When  they  take  into  consideration  the  principles  an- 
nounced by  the  great  Declaration  of  Independence,  the 


278  CONSTITUTION   OF   THE   UNITKD  STATES. 

fact  that  no  government  for  the  United  States  was  or- 
dained by  the  constitution,  but  in  lieu  thereof,  three  sep- 
arate agents,  to-wit,  the  legislative,  executive  and  judici- 
ary departments,  that  the  legislatures  of  two-thirds  of  the 
states  may  demand  a  federal  convention  to  propose  amend- 
ments to  the  constitution,  and  when  any  amendments  pro- 
posed by  that  convention  shall  be  ratified  by  conventions 
in  three- fourths  of  the  states,  they  are  to  become  the  con- 
stitution on  that  subject,  all  logical  reasoners  will  be  forced 
to  the  conclusion  that  the  sovereignty  of  the  United  States 
resides  in  the  people  of  the  states.  If  it  is  in  the  people 
of  the  states,  they  alone  have  the  right  to  determine  who 
shall  be  taken  into  the  body  politic  and  become  members 
of  the  national  family. 

There  is  no  authority  in  the  letter  of  the  constitution 
that  allows  the  congress  or  the  president  to  buy  territory, 
or  to  sell  territory,  except  to  emigrants  and  settlers,  and 
in  sales  to  emigrants  and  settlers  the  sovereign  title  is 
never  passed  ;  not  only  is  the  eminent  domain  retained, 
but  the  purchaser  becomes  subject  to  the  sovereignty  of 
the  nation.  While  as  has  been  shown,  every  sale  of  ter- 
ritory by  which  the  sovereign  title  passes,  sovereign  con- 
trol over  the  inhabitants  thereof  also  passes.  Power  to 
buy  territory  in  the  United  States,  if  it  exist,  must,  there- 
fore, be  drawn  alone  from  implication. 

Is  it  not  strange  that  any  citizen  of  the  United  States 
would  be  willing  to  draw  a  power  by  implication,  that  at 
once  makes  him  a  slave  to  his  government,  that  not  only 
denies  him  the  right  to  choose  his  own  associates,  to  con- 
stitute the  body  politic  or  national  family,  but  lays  him 
liable  to  be  sold  as  a  part  of  the  territory  he  may  inhabit ; 
for  the  right  to  buy  necessarily  includes  the  right  to 
sell? 

But   it  is  claimed   by   some,    that   the   United  States 


INTERCOURSE   AND   TRADE,  ETC.  279 

did  buy  the  province  of  Louisiana.  The  facts  are,  the 
United  States  held  the  superior  title,  in  trust,  to  that 
province,  and  it  was  cheaper  to  buy  out  France's  posses- 
sion of  it,  than  to  go  to  war  at  that  time  for  the  posses- 
sion thereof. 

The  status  of  that  province,  together  with  the  history 
of  the  title  of  the  United  States  to  it,  and  the  claim  of 
France  to  it  will  incontrovertibly  sustain  my  contention 
that  nothing  passed  to  the  United  States  by  what  is 
known  as  the  Louisiana  purchase,  except  the  actual  pos- 
session of  it. 

As  the  evident  object  of  England  in  planting  her  col- 
onies in  this  countr>^  was  to  appropriate  the  vacant  and 
unclaimed  part  of  the  continent,  the  boundary  given  to 
the  three  colonies,  viz.,  Virginia,  New  England  and  the 
grant  to  the  Earl  of  Clarendon  and  others,  included  the 
whole  of  North  America  between  Canada  and  the  Flori- 
das,  being  thought  to  extend  from  31°  to  48°  north  lati- 
tude. The  charter  to  Virginia  was  amended  in  1606,  and 
made  to  extend  two  hundred  miles  north  of,  and  two 
hundred  miles  south  of  Point  Comfort  in  Virginia,  and  to 
extend  across  the  continent  the  same  width. 

The  second  company,  by  amended  charter  of  1620, 
was  made  to  extend  from  40°  to  48°  north  latitude,  and 
to  extend  across  the  continent — in  the  language  of  said 
amendment,  "  to  extend  from  sea  to  sea." 

The  charter  to  the  Earl  of  Clarendon  and  others,  in 
1663,  was  the  grant  under  which  the  Carolinas  were  set- 
tled. The  boundary  thereof  was,  ' '  beginning  at  Lucke 
island  in  the  southern  waters  of  Virginia,  thence  west  to 
the  Southern  seas,  and  south  to  the  river  Mathias,  which 
bordereth  on  the  coast  of  Florida,"  etc. 

These  amended  charters  were  granted  by  James,  styl- 
ing himself  King  of  England,  Scotland,  France  and  Ire- 
land. 


28o  CONSTITUTION   OF   THE  UNITED   STATES. 

The  charter  to  the  Earl  of  Clarendon  and  others  was 
granted  by  Charles  II.,  styling  himself  King  of  England, 
Scotland,  France  and  Ireland. 

These  three  grants  included  all  of  North  America  be- 
tween 31°  and  48°  north  latitude,  extending  across  the 
continent  from  sea  to  sea.* 

In  1673,  being  sixty  years  after  England  had  taken 
possession  of  the  greater  part  of  it,  and  ten  years  after 
she  had  taken  possession  of  the  whole  of  it,  France 
claimed  to  have  discovered  the  province  of  Irouisiana, 
and  governed  the  same  by  officers  sent  out  from  Paris, 
making  New  Orleans  the  capital  of  the  province. 

On  November  3,  1762,  some  ninety  years  after  claim- 
ing to  have  discovered  it,  France  ceded  that  part  of  it 
that  lay  on  the  east  of  the  Mississippi  river,  including 
New  Orleans,  to  Spain  ;  but  Spain  retroceded  it  to  France 
by  treaty  of  Ildefonso,  October  i,  iSoo.f 

This  treaty  was  laid  before  a  called  session  of  congress 
by  President  Jefferson,  that  met  the  17th  of  October, 
1803,  which  resulted  in  what  is  called  the  Louisiana  pur- 
chase. 

The  fact  that  England  had  possession  of  said  province 
at  the  time  France  claimed  to  have  discovered  it,  and 
claimed  it  prior  to  the  treaty  of  Paris  of  1763,  why  was 
it  not  included  in  the  treaty  of  alliance  between  France 
and  the  United  States  of  1778?  The  sixth  section  of 
that  treaty  reads  as  follows  : 

' '  Art.  6.  The  most  Christian  King  renounces  forever 
the  possession  of  the  islands  of  Bermuda,  as  well  as  of 
any  part  of  the  continent  of  North  America  which  be- 
fore the  treaty  of  Paris,  in  1763,  or  in  virtue  of  that 
treaty,  were  acknowledged  to   belong   to  the  crown  of 


*  Poore's  Charters.  f  Id. 


INTERCOURSE    AND    TRADE,    ETC.  28l 

Great  Britain,  or  to  the  United  States,  heretofore  called 
British  colonies,  or  which  are  at  this  time,  or  lately  have 
been,  under  the  power  of  the  king  and  crown  of  Great 
Britain."* 

But  in  addition  to  this  claim,  the  charter  to  the 
Georgia  Company,  granted  in  1732  by  King  George  II., 
paid  no  attention  to  the  claim  of  France  to  the  province 
of  Louisiana,  for  the  grant  to  Georgia  stretches  entirely 
across  said  province  to  the  full  width  of  the  grant  to  that 
colony  by  the  express  language  of  the  charter,  showing 
that  England — at  least  at  that  time — claimed  all  that  she 
had  appropriated  by  planting  her  colonies  in  this  coun- 
try, and  doubtless  continued  to  claim  the  whole  of  it, 
which  we  have  seen  included  all  that  part  of  the  conti- 
nent of  North  America  between  31°  and  48°  north  lati- 
tude, extending  from  the  Atlantic  to  the  Pacific 
oceans. 

Ha\nng  shown  what  England  claimed,  I  will  now  show 
what  the  colonies  claimed  while  the  Revolutionary  War 
was  going  on. 

On  the  15th  of  December,  1778,  the  legislature  of 
Mar>'land  adopted  a  declaration  setting  out  that  many  of 
the  states  claimed  large  surplus  and  unsettled  territor>% 
that  some  of  them  claimed  to  extend  to  the  Mississippi 
river  or  to  the  Pacific  Ocean,  and  on  the  same  day  drew 
up  instructions  to  the  members  of  congress  from  that 
state,  directing  them  to  insist  on  so  amending  the  articles 
of  confederation  as  to  authorize  congress  to  fix  the 
boundary  of  the  states  and  to  set  apart  said  surplus  ter- 
ritory- as  a  fund  to  pay  the  war  debts,  f 


*  Statutes  at  Large,  U.  S.,  vol.  8. 

t  Henning's  Stat,  of  Va.,  vol.  10,  pp.  549-556. 


282  CONSTITUTION   OF   THE   UNITED   STATES. 

The  state  of  Virginia,  on  the  14th  of  December,  1779 
(being  about  a  year  afterward),  prepared  and  adopted  a 
remonstrance  to  the  Maryland  resolutions  and  instruc- 
tions, from  which  I  make  the  following  quotation  : 

.  .  ' '  Congress  have  lately  described  and  ascertained 
the  boundaries  of  these  United  States  as  an  ultimatum  in 
their  terms  of  peace.  The  United  States  hold  no  terri- 
tory but  in  right  of  some  one  individual  state  in  the 
union  ;  the  territory  of  each  state,  from  time  immemorial, 
hath  been  fixed  and  determined  by  their  respective  char- 
ters, there  being  no  other  rule  or  criterion  to  judge  by  ; 
should  these  in  any  instance  (when  there  is  no  disputed 
territory  between  particular  states)  be  abridged  without 
the  consent  of  the  states  affected  by  it,  general  confusion 
must  ensue  ;  each  state  would  be  subjected  in  its  turn  to 
the  encroachments  of  the  others,  and  a  field  opened  for 
future  wars  and  bloodshed  ;  nor  can  any  agreements  be 
fairly  urged  to  prove  that  any  particular  tract  of  country, 
within  the  limits  claimed  by  congress  on  behalf  of  the 
United  States,  is  not  part  of  the  chartered  territory  of 
some  one  of  them,  but  must  militate  with  equal  force 
against  the  right  of  the  United  States  in  general ;  and 
tend  to  prove  such  tract  of  country  (if  north-west  of  the 
Ohio  river)  part  of  the  British  province  of  Canada. 

' '  When  Virginia  acceded  to  the  Articles  of  Confedera- 
tion, her  rights  of  sovereignty  and  jurisdiction  within 
her  own  territory  were  reserved  and  secured  to  her,  and 
can  not  now  be  infringed  or  altered  without  her  con- 
sent.    .     .     .  "  * 

The  action  of  the  legislatures  of  these  two  states  show 
that,  in  the  midst  of  the  war,  the  states  claimed  all  of  the 
territory  within  the  boundarj^  of  their  respective  charters, 


*Henning's  Stat,  of  Va.,  vol.  10,  p.  558. 


INTERCOURSE    AND   TRADE,  ETC.  283 

and  that  the  whole  of  said  territory  was  claimed  by  Eng- 
land ;  therefore,  it  was  claimed  by  both  parties  to  the 
revolutionary  war,  and  of  course  the  whole  of  it  was 
involved  in  that  war,  and  passed  to  the  several  states 
according  to  the  boundar>'  of  their  respective  British 
charters  upon  the  acknowledgment  of  their  independ- 
ence. 

As  said  by  the  supreme  court,  whatever  England 
claimed,  or  was  entitled  to  when  war  was  declared,  was 
involved  in  the  war  and  passed  to  the  colonies  by  the  "h 
acknowledgment  of  their  independence ;  and  the  treaty 
with  England  attempting  to  define  the  bouudar}-  of  the 
United  States  did  not  affect  the  boundary  thereof,  for  no 
territory  was  granted  by  that  treaty.  * 

As  long  as  the  colonies  remained  mere  municipal  agents 
of  Great  Britain,  the  disparity  in  the  size  of  them,  as  col- 
onies, was  a  matter  of  no  consequence,  but  when  they 
were  about  to  become  sovereign  states,  that  disparity  ex- 
cited jealousies  among  them,  and  three  of  the  states  de- 
layed ratifying  the  Articles  of  Confederation  on  account 
of  it,  and  insisted  on  the  surrender  of  their  surplus 
territory  by  the  large  states  to  aid  in  paying  the  ex- 
penses of  the  war.  And  the  congress  made  repeated 
appeals  to  the  large  states  to  do  so,  but  none  were 
heeded  until  the  congress  pledged  itself  to  hold  the  sur- 
plus territory  so  ceded  by  the  states,  for  the  benefit  of  all 
of  the  states,  and  to  divide  it  up  into  convenient  sizes  and 
shapes  to  be  formed  into  states,  and  as  fast  as  either  of 
said  divisions  should  contain  a  sufficient  population  to 
constitute  a  state,  to  admit  the  same  as  a  new  state  with 
equal  sovereignty  and  freedom  with  the  existing  states, 


*  12  Wheaton,  523  (U.  S. ),  Harcourt,  etc.,  v.   Guillard,  etc.;  12 
WTieaton,  530  (U.  S. ),  Henderson  v.  Poindexter. 


284  CONSTITUTION   OF  THE  UNITED   STATES. 

which  pledge  was  made  with  the  resolution  adopted  on 
the  —  day  of  September  1780. 

In  consideration  of  this  pledge  the  state  of  Virginia,  on 
the  2d  of  January,  1781,  authorized  the  cession  of  its  sur- 
plus territory  north-west  of  the  Ohio  river  with  certain 
reservations  to  soldiers,  settlers,  etc. 

Although  Virginia  offered  to  cede  its  territory  north- 
west of  the  Ohio  river  in  1781,  the  deed  for  it  was  not 
made  until  1783,  and  was  not  delivered  until  the  ist  of 
March,  1784.  This  deed,  after  reciting  the  act  of  the 
Virginia  legislature  and  the  reservation  of  certain  parts 
for  soldiers  and  settlers,  proceeded  as  follows:  "Now, 
therefore,  know  3^e,  that  we,  the  said  Thomas  Jefferson, 
Samuel  Hardy,  Arthur  Lee,  and  James  Monroe,  by  vir- 
tue of  the  power  and  authority  committed  to  us  by  the 
act  of  said  general  assembly  of  Virginia,  before  recited, 
and  in  the  name,  and  for  and  on  behalf  of  said  common- 
wealth, do,  by  these  presents  convey,  transfer,  assign, 
and  make  over,  unto  the  United  States  in  congress  as- 
sembled, for  the  benefit  of  the  said  states,  Virginia  in- 
clusive, all  right,  title  and  claim,  as  well  of  soil  as  of 
jurisdiction,  which  the  said  commonwealth  hath  to  the 
territory  or  tract  of  country  within  the  limits  of  the  Vir- 
ginia charter,  situate,  lying,  and  being,  to  the  north- 
west of  the  river  Ohio,  to  and  for  the  uses  and  purposes, 
and  on  the  conditions  of  the  said  recited  act."     .     .     .* 

All  of  the  states,  except  North  Carolina  and  Georgia, 
had  followed  Virginia's  example  and  ceded  their  surplus 
territory  to  the  United  States,  before  the  convention  that 
made  the  constitution  met ;  and  it  was  believed  that 
those  two  states  would  also  cede  their  surplus  territory 
to  the  United  States. 


*  These  proceedings  may  be  found  in  volumes  10  and  li,  Hen- 
ning's  Statutes  at  Large  of  Virginia. 


INTERCOURSE   AND   TRADE,    ETC.  285 

I  have  not  examiued  the  deeds  from  each  of  the  states 
to  the  United  States,  but  there  was  no  convenient  or  rea- 
sonable way  for  them  to  convey  their  surplus  territory 
respectively,  except  to  convey  from  a  given  boundary 
line  to  the  extent  of  the  boundary  of  their  respective 
British  charters,  which  vested  the  United  States  with  the 
true  and  paramount  title  to  what  was  known  as  the 
Louisiana  province. 

England's  claim  to  the  whole  of  that  part  of  the  conti- 
nent of  North  America  included  between  Canada  and  the 
Floridas  from  the  Atlantic  to  the  Pacific  Oceans  having 
been  entered  by  actual  settlement  on  each  of  said  colonial 
grants  for  the  purpose  of  taking  possession  of  the  whole 
grant  in  each  case,  while  no  part  thereof  was  claimed  or  oc- 
cupied adversely,  by  a  well-settled  rale  of  law  each  settle- 
ment spread  over  the  whole  grant  to  the  extent  of  the 
boundary  thereof  ;  and  as  but  one  constructive  possession 
can  exist  at  the  same  time,  the  settlement  of  France  at  New 
Orleans  could  not  be  made  to  extend  further  than  the  actual 
settlement  and  inclosures,  if  an  adverse  possession  can  be 
made  available  between  nations,  which  is  at  least  doubtful. 

But  as  England  continued  to  claim  it,  which  is  shown 
in  various  ways,  notably  by  the  grant  to  the  Georgia 
Company  in  1732,  the  adverse  possession  at  New  Orleans 
could  not  prejudice  England's  title  to  what  is  called  the 
Louisiana  province. 

The  whole  of  that  part  of  the  continent  of  North 
America  between  Canada  and  the  Floridas,  stretching 
across  the  continent  from  the  Atlantic  to  the  Pacific 
Oceans  (which  included  the  pro\ance  of  Louisiana) ,  being 
claimed  and  occupied  by  England  through  her  colonies 
at  the  beginning  of  the  war  of  the  revolution,  the  whole 
of  it  was  involved  in  that  war,  and  the  title  thereof 
passed  from  England  to  the  states  by  the  acknowledg- 
ment of  their  independence. 


286  CONSTITUTION   OF   THE   UNITED   STATES. 

Consequently  the  United  States,  under  the  articles  of 
confederation,  covered  and  included  the  whole  of  said 
part  of  the  continent  of  North  America  ;  and  the  United 
States,  under  the  constitution  of  1787,  necessarily  in- 
cluded the  same  country  or  territory ;  and  that  was  the 
country  or  territory  that  was  contemplated  by  the  con- 
vention in  authorizing  new  states  to  be  admitted,  by  the 
use  of  the  following  language  in  the  draft  of  the  consti- 
tution by  the  committee  on  detail :  ' '  New  states,  law- 
fully constituted  or  established  within  the  Hmits  of  the 
United  States,  may  be  admitted,"  etc.  And  doubtless 
the  same  country  was  recognized  as  being  within  the 
United  States  by  the  committee  on  style  ;  but  that  com- 
mittee, knowing  that  there  was  no  authority  granted  by 
the  constitution  to  congress  or  the  United  States  to  buy 
any  additional  territory,  regarded  the  words  "lawfully 
constituted  or  established  within  the  limits  of  the  United 
States  "  as  surplusage,  as  no  new  states  could  be  admitted 
unless  they  were  lawfully  constituted  or  established,  and 
as  no  authority  to  buy  territory  was  granted,  no  new 
states  could  be  admitted  unless  they  were  within  the 
limits  of  the  United  States ;  therefore  said  committee 
changed  it  to  "  New  states  may  be  admitted  by  the  con- 
gress into  this  Union,"  etc. 

There  being  no  authority  in  the  congress  to  naturaHze 
any  but  white  persons  being  free,  or  to  admit  any  except 
free  white  people  into  the  family  of  the  nation,  and  there 
being  no  authority  in  the  United  States  to  acquire  terri- 
tor}%  the  whole  of  the  surplus  territory  ceded  to  the 
United  States  in  trust  by  the  respective  states  is  obliged 
to  be  held  for  the  exclusive  use  of  the  citizens  of  the 
United  States  and  such  free  white  people  as  congress  may 
naturalize  ;  and  as  no  territory  can  be  bought,  no  people 
can  be  purchased  as  part  of  any  territory  by  the  United 
States  government  or  any  of  its  departments. 


INTERCOURSE   AND   TRADE,  ETC.  2S7 

These  provisions  Tvnsely  secure  the  purity  of  the  body 
politic  or  national  family  of  the  United  States,  and  firmly 
reserve  to  the  white  people  alone  the  sovereign  authority 
of  the  nation. 

Should  the  people  of  the  states  (in  whom  the  entire 
sovereign  authority  of  the  nation  is  lodged)  desire  to  add 
territory  to  the  United  States,  or  to  take  a  different  race 
or  grade  of  people  into  the  national  family  or  body  politic 
of  the  nation,  they  may  do  so,  provided  they  speak 
through  a  federal  convention  and  ratify  the  same  by  con- 
ventions in  three-fourths  of  the  states  ;  those  conventions 
being  the  only  organ  provided  by  the  constitution  through 
which  the  people  can  express  their  sovereign  will  on  any 
subject.* 

Many  of  the  anti-slavery  people  of  the  free  states 
were  opposed  to  the  United  States  getting  possession  of 
the  Louisiana  province,  because  it  would  evidently  in- 
crease the  slave  territory  and  add  other  slave  states  to 
the  union  ;  and  some  of  them,  conceding  that  said  prov- 
ince was  involved  in  the  war,  and  although  England's 
claim  may  have  been  better  than  that  of  France,  still 
the  United  States  was  estopped  from  claiming  it  by 
reason  of  the  treaty  with  Spain  of  1795,  fixing  the  west- 
em  boundary  in  the  middle  of  the  Mississippi  river. 
But  that  treaty,  as  well  as  the  one  with  England,  was 
passed  on  by  the  supreme  court  in  the  cases  reported  in 
12  Wheaton,  heretofore  cited,  did  not  profess  to  pass 
title  to,  or  convey  any  territorj^  by  either  party  ;  there 
were  no  words  of  purchase,  conveyance,  or  grant  of  any 
territory  in  said  treaty.  But  if  there  had  been,  the 
whole  of  the  surplus  territor}^  of  the  several  states  had 
been  ceded  to  the  United  States  in  congress  assembled, 
in  trust  for  a  specific  purpose  (to  Tvit),  to  be  held  for  the 

*  See  chaps,  i  and  2. 


288  CONSTITUTION   OF   THE  UNITED   STATES. 

equal  benefit  of  all  of  the  states,  and  to  be  sold  only  to  set- 
tlers and  emigrants  who  would  occupy  it,  and  as  fast  as 
any  particular  division  of  it  should  acquire  a  sufficient 
population  to  entitle  it  to  a  representative  in  congress,  to 
admit  such  division  into  the  union  as  an  equal  state. 
Therefore,  any  agreement  the  United  States  may  have 
made  with  Spain  not  to  claim  the  territory  west  of  the 
Mississippi  could  not  have  any  binding  force  on  the  sev- 
eral states  of  the  United  States,  because  it  would  have 
been  in  violation  of  the  trust  by  which  the  United  States 
held  that  territory. 

Second,  Spain  had  no  interest  in  the  territory  west  of 
the  Mississippi  river,  for  the  whole  of  the  territory  ceded 
by  France  to  Spain  laid  on  the  east  side  of  that  river. 

Third,  there  was  no  bargain  or  sale  of  any  territory  on 
the  west  side  of  the  Mississippi  river  by  the  United  States 
to  Spain  in  that  treaty,  nor  was  any  consideration  offered 
or  paid  for  any  territory  west  of  that  river  ;  consequently 
no  estoppel  can  operate  against  the  claim  by  the  states  of 
the  territory  west  of  the  Mississippi  river  and  none  can 
possibly  arise  out  of  that  treaty  with  Spain. 

It  is,  however,  claimed  that  Mr,  Jefferson  doubted  the 
the  existence  of  authority  under  the  constitution  to  pur- 
chase the  province  of  Louisiana,  and  urged  an  amend- 
ment to  the  constitution  to  authorize  its  purchase. 

If  Mr.  Jefferson  was  guilty  of  knowingly  and  willfully 
violating  his  oath  to  support  the  constitution,  instead  of 
being  revered  as  the  great  apostle  of  the  liberty  of  the 
people,  he  should  have  been  impeached  and  condemned 
as  an  arch  enemy  of  constitutional  government  and  hu- 
man freedom.  But  there  was  never  any  foundation  for 
that  charge,  and  it  must  have  been  started  and  kept  alive 
by  his  enemies,  for  it  is  a  vile  aspersion  of  his  character. 

Mr.  Jefferson  was  an  active  participant  in  all  of  the 
proceedings  of  his  state — Virginia — relating  to  the  claim 


INTERCOURSE    AND   TRADE,  ETC.  289 

of  that  State  to  the  territory  withiu  the  boundary  of  its 
British  charter  ;  and  was  one  of  the  members  of  congress 
from  that  state  at  the  time  they  were  constituted  com- 
missioners to  convey  the  surplus  territory  of  that  state  to 
the  United  States,  and  probably  drafted  the  deed  in  per- 
son, part  of  which  is  hereinbefore  quoted.  As  shown  by 
that  deed  the  whole  of  the  territory  of  that  state  north- 
west of  the  Ohio  river,  to  the  full  extent  of  the  boundary 
as  given  by  its  British  charter,  was  conveyed  to  the 
United  States  in  congress  assembled,  in  trust  for  the  bene- 
fit of  all  of  the  states  ;  and  he  knew  it  to  be  the  duty  of  the 
United  States  to  acquire  possession  of  ever>'  foot  of  the 
territory  so  conveyed  as  fast  as  it  should  be  needed  to 
make  states  of,  and  there  is  nothing  in  any  part  of  the  pro- 
ceedings relating  to  the  acquisition  of  the  possession  of  the 
province  of  Louisiana  from  France  that  shows  the  slightest 
doubt  of,  not  only  the  authority,  but  the  imperative  duty 
to  remove  the  obstruction  to  the  possession  of  that  prov- 
ince on  the  mind  of  Mr.  Jefferson. 

It  is  however  true,  that  Mr.  Jefferson  entered  into 
convention  wath  the  first  consul  of  France  relating  to  the 
acquisition  of  the  province  of  Louisiana  some  six  months 
before  communicating  with  the  senate  or  congress. 

As  the  congress  alone  is  authorized  to  contract  debt, 
or  put  the  United  States  under  obligation  to  pay  money, 
and  by  his  convention  said  province  was  to  cost  the 
United  States  thirteen  millions  of  dollars,  Mr.  Jefferson 
laid  himself  liable  to  impeachment  for  assuming  legisla- 
tive powers,  however  he  felt  justified  by  declarations  and 
acts  of  congress  ;  but  whatever  the  congress  may  have 
declared  on  the  subject,  could  be  repudiated  by  the  same 
congress  or  its  successor,  and  if  the  congress  had  con- 
cluded that  the  previous  resolutions,  declarations  and 
acts  were  insufl&cient  to  authorize  so  bold  a  step  to  be 
taken  by  the  executive,  that  conclusion  would  amount  to 


290  CONSTITUTION   OF   THE)   UNITED  STATES. 

a  decision  that  it  was  their  duty  to  impeach  the  presi- 
dent. 

Mr,  Jefferson,  however,  thought  the  previous  acts  and 
declarations  authorized  him  to  act  without  waiting  to 
confer  with  the  senate  or  the  congress,  and  in  a  message 
to  congress  on  the  17th  of  October,  1803,  explains  to 
congress  his  reasons  for  so  doing,  which  are  as  follows  : 

.  .  .  ' '  Previous,  however,  to  this  period  we  had 
not  been  unaware  of  the  danger  to  which  our  peace  would 
be  perpetually  exposed  whilst  so  important  a  key  to  the 
commerce  of  the  western  country  remained  under  foreign 
power.  DifiSculties,  too,  were  presenting  themselves  as 
to  the  navigation  of  other  streams  which,  arising  within 
our  territories,  pass  through  those  adjacent.  Proposi- 
tions had  therefore  been  authorized  for  obtaining  on  fair 
conditions  the  sovereignty  of  New  Orleans,  and  of  other 
possessions  in  that  quarter  interesting  to  our  cornet  to 
such  extent  as  was  deemed  practicable,  and  the  provi- 
sional appropriation  of  $2,000,000  to  be  applied  and  ac- 
counted for  by  the  president  of  the  United  States,  intended 
as  part  of  the  price,  was  considered  as  conveying  the 
sanction  of  congress  to  the  acquisition  proposed.  The 
enlightened  government  of  France  saw  with  just  descern- 
ment  the  importance  to  both  nations  of  such  liberal  ar- 
rangements as  might  best  and  permanently  promote  the 
peace,  friendship  and  interest  of  both,  and  the  property 
and  sovereignty  of  all  Louisiana  which  had  been  restored 
to  them  have  on  certain  conditions  been  transferred  to 
the  United  States  by  instruments  bearing  date  the  30th 
of  April  last.  When  these  shall  have  received  the  con- 
stitutional sanction  of  the  senate,  they  will  without  delay 
be  communicated  to  the  representatives  also  for  the  exer- 
cise of  their  functions  as  to  those  conditions  which  are 
within  the  powers  vested  by  the  constitution  in  congress. 

' '  Whilst   the  property  and  sovereignty  of   the   Mis- 


INTERCOURSE   AND   TRADE,    ETC.  29 1 

sissippi  and  its  waters  secure  an  independent  outlet  for 
the  produce  of  the  western  states,  and  an  uncontrolled 
navigation  through  their  whole  course,  free  from  collision 
with  other  powers  and  the  dangers  to  our  peace  from 
that  source,  the  fertility  of  the  country,  its  climate  and 
extent,  promise  in  due  season  important  aids  to  our 
treasury,  an  ample  provision  for  our  posterity,  and  a 
wide  spread  for  the  blessings  of  freedom  and  equal 
laws. "     .     .     .  * 

Said  convention  with  France  was  laid  before  the  sen- 
ate on  the  same  day  this  message  was  sent  to  the  con- 
gress (being  the  17th  of  October,  1803).  The  senate 
approved  it,  and  on  the  21st  of  October,  1803,  by  special 
message,  the  treaty  as  consented  to  by  the  senate,  and 
ratified  and  exchanged  between  the  nations,  was  laid 
before  the  congress,  f 

Said  treaty  was  afterward  sanctioned  and  carried  into 
effect  by  the  congress. 

Mr.  Jefferson  realizing  the  danger  he  was  in,  if  the 
congress  should  fail  to  adhere  to  its  former  declarations, 
doubtless  felt  some  uneasiness  about  exercising  legisla- 
tive powers,  and  may  have  given  expression  to  the  same. 
But  he  never  had  any  doubt  of  the  right  to  quiet  the  pos- 
session of  the  province  of  Louisiana. 

One  of  the  objects  named  in  the  preamble  to  the  con- 
stitution, is  "to  provide  for  the  common  defense,"  and 
the  ownership  of  the  Floridas  being  necessary  to  the  ' 
public  defense,  their  purchase  was  made  under  that  au- 
thority, and  the  purchase  thereof  in  discharge  of  the 
duty  to  provide  for  the  pubHc  defense  was  entirely  justi- 
fied by  the  constitution. 


*  See  Messages  of  Presidents,  vol.  i,  p.  358. 
t  Messages,  etc.,  vol.  i,  p.  362. 


292  CONSTITUTION   OF   THE   UNITED   STATES. 

The  treaty  by  which  the  two  Floridas  were  acquired 
was  entered  into  the  2 2d  day  of  February,  181 9,  but  was 
not  ratified  until  the  19th  of  February,  1821  ;  and  by  it 
Spain  ceded  to  the  United  States  the  two  Floridas,  to- 
gether with  the  island  and  city  of  New  Orleans ;  and 
the  United  States  ceded  to  Spain  the  greater  part  of  what 
now  constitutes  Texas.  As  the  United  States  held  this 
territory  of  Texas  under  the  cession  of  the  states  in 
trust,  there  was  no  authority  in  the  United  States  to 
cede  it  to  Spain ;  nor  had  the  United  States  any  au- 
thority to  cede  it  under  the  decision  of  the  supreme 
court  in  the  Dred  Scott  case,  for  even  if  the  original  title 
thereto  emanated  from  the  lyouisiana  purchase,  still  it 
would  be  held  in  trust  to  make  states  of,  and  could  not 
be  sold  ;  but  that  territory  has  been  re-acquired  by  the 
United  States,  therefore  that  sale  need  not  be  considered 
any  further. 

As  all  of  the  territory  between  Canada  and  the  Flori- 
das, stretching  entirely  across  the  continent,  from  the 
Atlantic  to  the  Pacific  oceans,  was  involved  in  the  war, 
it  passed  to  the  states  by  the  acknowledgment  of  their 
independence,  therefore  the  whole  within  that  boundary 
must  be  construed  to  be  within  the  United  States.  In 
addition  hereto,  as  the  United  States  is  required  to  pro- 
vide for  the  public  defense,  they  may  buy  territory  con- 
tiguous to  the  United  States  where  it  may  be  necessary 
to  provide  for  the  public  defense,  and  may  admit  new 
states  formed  of  the  territory^  so  purchased.  The  new 
states  authorized  to  be  admitted  into  the  union  must, 
therefore,  be  within  or  contiguous  to  the  existing  states 
of  America. 

But  if  the  constitution  and  the  declaration  of  indepen- 
dence be  considered  as  obsolete,  and  this  question  one  of 
policy  and  economics,  the  objections  to  the  acquisition  of 


INTERCOURSE   AND   TRADE,    ETC.  293 

such  islands  or  remote  territory,  except  as  stations  for 
naval  and  commercial  uses,  is  most  dangerous,  for  such 
islands  or  remote  territory,  as  states,  will  require  a  separate 
army  and  na\'y  to  maintain  them,  or  each  of  them,  which 
can  never  be  used  to  aid  in  maintaining  the  contiguous 
American  states  ;  while  it  is  impossible  to  construct  a  fort, 
port,  or  arsenal,  or  to  use  ships  of  war  for  the  protection  of 
the  coast  and  ports  of  any  of  the  contiguous  states  of 
America,  without  their  contributing  to  the  security  of 
each  of  the  states  of  America.  The  bulk  of  the  cost  of 
maintaining  such  isolated  states  would  fall  on  the  Amer- 
ican states  as  tribute,  or  an  additional  expense.  WTiat 
could  the  American  states  expect  in  return  for  this  trib- 
ute? 

The  population  of  the  Philippines  is  sufficient  to  fur- 
nish some  part  of  the  armj^  to  defend  those  islands,  but 
soldiers  drawn  from  that  mongrel  population  can  not  be 
relied  on  to  maintain  the  reputation  the  American  citi- 
zens have  won  as  soldiers ;  nor  can  we  expect  from 
them  great  scientists,  inventors,  or  statesmen  to  add 
glory  to  the  citizenship  of  the  United  States.  Then 
what  can  we  expect  in  return  for  the  extra  expense 
to  the  American  states?  The  taxation,  under  the  con- 
stitution, is  required  to  be  equal,  and  the  expendi- 
tures for  each  ought  at  least  to  approximate  equality, 
for  unless  they  do  approximate  equality,  some  of  the 
states  will  be  forced  to  pay  tribute  to  other  states.  It 
is  true  some  of  the  American  states  -psLy  more  taxes 
than  other  states,  but  the  states  that  pay  small  amounts 
of  taxes  have  but  little  expended  on  them  ;  and  isolated 
states  separated  from  the  American  .states  by  the  high 
seas  or  foreign  nations,  can  not  be  made  to  pay  a  tithe 
of  what  they  will  cost  the  American  states  to  maintain 
them. 


294  CONSTITUTION  OF    THE   UNITED   STATES. 

Furthermore,  the  people  of  the  American  states  would 
expect  to  furnish  the  officers  and  other  employes,  to  get 
some  of-  their  tribute  money  back,  and  that  partiality  to 
citizens  of  the  American  states  would  engender  a  spirit 
of  resentment  on  the  part  of  the  citizens  of  such  isolated 
states,  which  would  likely  result  in  manifestations  of  re- 
bellious feelings  on  the  part  of  the  natives,  strong  enough 
to  call  for  interference  on  the  part  of  the  military  au- 
thorities. 

In  this  way,  whatever  civil  government  may  be  estab- 
lished therein  must  gradually  fall  under  the  military 
authorities ;  and  thus,  although  formed  into  states,  they 
would  soon  become  mere  provinces  of  the  United  States. 
And  the  military  feeling  engendered  by  the  glittering  dis- 
play a  well-equipped  army  and  navy  would  show,  coupled 
with  the  impression  that  would  necessarily  take  hold  of 
the  soldiery,  that  the  army  and  navy  alone  represented 
the  glory  of  this  nation — particularly  as  the  military 
would  have  at  least  partial  control  of  the  civil  authorities 
in  such  isolated  states — they  would  become  so  impressed 
with  their  importance  as  to  make  their  authority  felt  in 
the  contiguotis  American  states,  and  speedily  convert  the 
Republic  of  the  United  States  into  an  imperial  nation 
with  unlimited  powers,  or  such  as  the  empire  would  as- 
sume control  of ;  for  as  no  powers  were  granted  to  the 
United  States,  no  limitations  were  imposed  on  the  United 
States  by  the  constitution. 

Therefore,  a  new  government  would  have  to  be  estab- 
lished for  the  new  empire. 

This  new  government  being  without  limitations,  with  a 
formidable  army  and  na\T  at  its  disposal,  would  not  be 
likely  to  surrender  powers  of  much  value  to  the  people. 

However,  if  we  could  secure  mild-tempered  and  honest 
emperors   for  a   long  while,   the  powers  of  the  empire 


INTERCOURSE   AND   TRADE,    ETC.  295 

might  be  limited  by  interpretation  until  an  unwritten 
constitution,  similar  to  that  of  the  kingdom  of  Great 
Britain,  would  be  established  ;  but  if  the  emperors  are  to 
be  chosen  through  bribery  and  fraud,  no  one  can  possibly 
tell  how  far  the  people  will  be  enslaved  or  what  tyranny 
may  be  imposed  on  them. 

It  is  claimed  that  we  now  own  the  Philippine  group 
of  islands,  the  Hawaiian  islands,  and  some  of  the  West 
India  islands,  and  the  Territory  of  Alaska.  The  natural 
inquiry  therefore,  is,  what  shall  we  do  with  them  ? 

Since  the  theory  upon  which  this  nation  is  founded 
is  that  the  sovereignty  resides  in  the  people  only,  and  is 
inalienable  from  them  ;  according  to  the  declaration  of 
independence,  the  sovereignty  must  be  equally  vested  in 
the  people  ;  for  if  some  of  them  can  be  subject  to  the 
will  of  others,  those  subject  to  others  can  not  be  sovereign. 
And  by  the  thirteenth  amendment  to  the  constitution  it 
is  provided  that  ' '  neither  slavery  nor  involuntary  sen-i- 
tude,  except  for  crime,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction."  Our 
new  possessions  can  not,  therefore,  be  held  as  provinces 
or  as  permanent  territories. 

No  appropriation  that  may  be  made  for  the  mainte- 
nance of  the  army  and  navy,  necessary  to  protect  states 
formed  of  any  of  said  islands  or  territor>%  can  in  any 
possible  way  redound  to  the  protection  of  the  contigu- 
ous states  of  America,  and,  as  under  the  limitations  on 
the  taxing  powders,  neither  of  said  groups  of  islands 
as  states  can  be  made  to  pay  a  tithe  of  the  cost  of 
maintaining  them,  it  will  be  impossible  to  equalize  the 
burdens  and  emoluments  between  the  American  states 
and  states  formed  of  said  isolated  territory  or  islands. 
They  therefore  can  not  be  admitted  as  equal  states  ;  con- 
sequently the  best  that  we  can  do  is  to  get  rid  of  them  on 


296  CONSTITUTION   OF  THE  UNITED   STATES. 

the  best  terms  consistent  with  the  free  institutions  of  the 
United  States  and  the  rules  of  humanity. 

International  law  requires  us  to  hold  them  until  we  can 
turn  them  over  to  a  humane  government.  The  constitu- 
tion of  the  United  States  prevents  us  from  selling  said 
islands  and  territory  to  any  buyer  except  the  inhabitants 
themselves,  for  the  reason  that  a  sale  of  the  islands  and 
territory  includes  a  sale  of  the  inhabitants  as  a  part  of  the 
land  as  hereinbefore  explained.  Therefore  we  are  com- 
pelled to  give  them  a  chance  of  organizing  a  humane 
government  for  themselves,  and  to  aid  them  in  maintain- 
ing their  government  until  the  people  thereof  become 
strong  enough  to  maintain  it  for  themselves. 

We  having  aided  in  a  friendly  way  the  establishing  of 
free  governments  organized  by  the  inhabitants  thereof  for 
themselves,  they  in  grateful  recognition  of  that  service 
would  prefer  to  give  their  trade  to  the  United  States. 
Whatever  government  may  be  established  should  be 
required  to  pay  the  expense  the  United  States  is  put 
to  in  giving  such  aid,  and  in  case  of  the  Philippine 
group  of  islands,  they  ought  to  be  required  to  pay  the 
twenty  millions  of  dollars  the  United  States  paid  Spain 
for  them,  as  well  as  the  cost  of  aiding  in  establishing  the 
government  conforming  to  the  will  of  the  inhabitants 
thereof. 

It  is  the  duty  of  every  government  to  carefully  guard 
what  is  called  the  glory  of  the  nation  it  represents.  What 
is  meant  by  the  glory  of  a  nation  is  its  power  to  protect 
its  institutions  and  the  rights  of  its  citizens,  and  to  main- 
tain its  dignity  and  standing  among  nations,  and  to  main- 
tain its  honor  and  adherence  to  its  pledges  and  policy  as 
a  nation. 

The  United  States  of  America,  without  said  islands  or 
isolated   territory,  with  a  merchant  marine  to  carry  its 


INTERCOURSE   AND   TRADE,  ETC.  297 

own  commerce,  and  a  navy  to  protect  that  marine,  and 
conv^eniences  to  transport  its  soldiers  from  one  point  to 
another  of  the  United  States  within  the  boundary  thereof, 
will  be  able  to  successfully  defend  herself  and  compel 
other  nations  to  respect  the  rights  of  her  citizens  ;  but  with 
said  islands  to  be  defended,  whether  as  states  or  as  prov- 
inces, the  military  power  of  this  nation  will  be  so  weak- 
ened as  not  only  to  impair  the  glor>'  of  the  United  States, 
but  may  cause  her  to  submit  to  insults  to  her  flag  that 
would  not  be  tolerated  as  long  as  the  nation  remains 
compact  and  independent  of  the  combined  powers  of  the 
world. 

Article  V. 

"The  congress,  whenever  two- thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to 
this  constitution ;  or,  on  the  application  of  the  legisla- 
tures of  two-thirds  of  the  several  states,  shall  call  a  con- 
vention for  proposing  amendments,  which  in  either  case 
shall  be  valid,  to  all  intents  and  purposes,  as  part  of  this 
constitution,  when  ratified  by  the  legislatures  of  three- 
fourths  of  the  several  states,  or  by  conventions  in  three- 
fourths  thereof,  as  the  one  or  the  other  mode  of  ratifica- 
tion may  be  proposed  by  the  congress  ;  provided,  that  no 
amendment  which  may  be  made  prior  to  the  year  one 
thousand  eight  hundred  and  eight,  shall  in  any  manner 
affect  the  first  and  fourth  clauses  in  the  ninth  section  of 
the  first  article,  and  that  no  state,  without  its  consent, 
shall  be  deprived  of  its  equal  suffrage  in  the  .senate." 

The  language  of  this  article  is  by  no  means  clear  as  to 
the  precise  meaning  the  draftsmen  intended  to  be  given 
it;  but  an  examination  of  the  proceedings  of  the  conven- 
tion will  show  the  manner  in  which  it  found  its  way  into 
the  constitution  in  that  form,  and  will  shed  some  light 
on  the  interpretation  that  should  be  given  to  it.     In  con- 


298  CONSTITUTION   OF   THE  UNITED   STATES. 

struing  the  constitution,  every  part  should  be  made  to  har- 
monize with  every  other  part  if  possible,  and  all  should 
yield  to  the  great  American  principles  upon  which  the 
system  of  government  is  based. 

As  pointed  out  in  the  first,  second,  and  third  chapters 
of  this  review,  the  whole  sovereign  authoritj^  was  re- 
served to  the  people,  and  the  government  of  the  federal 
union  was  to  be  but  a  corporate  agent  of  the  people  of 
the  several  states  ;  and  the  people  of  the  several  states 
were  made  directly  subjects  of  the  federal  union  under  the 
constitution  of  which  this  is  a  part,  thereby  making  them- 
selves bear  the  same  relation  to  the  more  perfect  union 
that  they  bear  to  their  respective  states,  viz. ,  of  being  both 
sovereign  and  subject ;  and  having  adopted  sovereign 
conventions  as  the  only  organ  through  which  to  express 
their  sovereign  will,  this  article  must  be  construed  as 
providing  two  modes  of  amending  the  constitution. 

One  mode  of  amending  that  instrument  is  by  two- 
thirds  of  each  house  of  congress  agreeing  to  and  pro- 
posing amendments,  which,  when  ratified  by  the  legisla- 
tures of  three- fourths  of  the  states,  shall  be  valid  to  all 
intents  and  purposes  as  parts  of  the  constitution,  but  this 
mode  of  amending  the  constitution  applies  alone  to 
changing  the  manner  of  executing  the  powers  theretofore 
granted  ;  for  each  house  of  congress,  as  well  as  the  legis- 
latures of  the  states,  are  but  agents  of  the  people,  and 
they  can  neither  enlarge  their  letters  of  authority  nor 
reduce  the  duties  imposed  on  them  by  the  sovereign 
people  while  acting  through  the  regular  organ  for  ex- 
pressing their  sovereign  will.  Besides,  no  power  can  be 
added  to  any  of  the  departments  of  either  the  federal 
governmental  agent  or  to  the  governmental  agents  of  the 
states,  except  by  the  sovereign  authority  ;  nor  can  any 
of  said  departments  be  relieved  of  any  duty  theretofore 


INTERCOURSE    AND   TRADE,    p;TC.  299 

imposed  on  them  by  the  sovereign  authority  except  by 
that  authority  itself,  and  that  authority  speaks  only 
through  sovereign  conventions. 

Consequently  the  congress  and  the  legislatures  of  the 
states  have  no  authority  to  change  the  plan  or  system  of 
the  government,  but  may  change  the  mode  of  executing 
the  powers  expressly  granted  to  the  congress  or  to  any 
department  of  the  United  States,  but  can  go  no  further. 

The  legislatures  of  the  states  are  incompetent  to  grant 
such  extensive  powers;  it  was  the  ratification  by  the 
people  in  their  respective  states  alone  that  gave  validity 
to  the  constitution.* 

This  is  as  far  as  even  Mr.  Hamilton  thought  the  con- 
gress and  the  legislatures  of  the  states  could  go  in  amend- 
ing the  constitution.! 

The  other  mode  of  amending  the  constitution  is,  by  the 
call  of  the  legislatures  of  two-thirds  of  the  states  for  a 
convention,  which  the  congress  has  no  authority  to  refuse, 
but  must  act  ministerially  and  make  the  call.:|: 

When  this  convention  is  called,  the  states  must  appoint 
the  delegates  to  it  ;  and  whatever  amendment  they  may 
recommend,  relating  to  any  changes  in  the  powers  of  the 
United  States,  must  be  submitted  to  conventions  chosen 
by  the  legal  voters  of  the  states  respectively,  and  when 
such  amendments  shall  be  ratified  by  such  conventions  in 
three-fourths  of  the  states,  they  shall  become  part  of  the 
constitution  to  all  intents  and  purposes.  1 1 

That  convention,  like  the  one  of  1787,  may  propose 
any  amendment  it  chooses,  even  to  the  abolishment  of 
the  departments  of  the  governmental  agents  ;  it  can  pro- 

*  McCuUoch  V.  Maryland,  4  Wheaton,  116. 

t  See  Letter  85,  Federalist. 

X  See  Letter  85,  Federalist ;  see  Story's  Com.  on  Cou.,  sec.  1832. 

II  See  letter  of  the  convention  to  congress. 


300  CONSTITUTION   OF   THK   UNITED   STATES. 

pose  to  do  away  with  the  judiciary  department,  or  a  re- 
modeling of  it  only,  or  a  remodeling  of  the  executive 
or  the  congress,  and  when  ratified  by  conventions  in 
three-fourths  of  the  states  these  propositions  will  become 
part  of  the  constitution  to  all  intents  and  purposes.  As 
the  present  constitution  was  a  mere  proposal  until  ratified 
by  the  people  in  their  state  conventions,  it  will  require  a 
ratification  by  the  people  in  state  conventions  to  make 
any  change  in  the  form  or  powers  of  the  government 
valid.* 

This  was  evidently  the  purpose  of  the  convention 
when  this  article  of  the  constitution  was  agreed  to.  For, 
the  constitution  was  constructed  on  a  series  of  resolutions 
offered  by  Hon.  Edmund  Randolph  ;  among  those  reso- 
lutions was  the  following  : 

13.  ''Resolved,  That  provisions  ought  to  be  made  for 
the  amendment  of  the  articles  of  union,  whensoever  it 
shall  seem  necessary,  and  that  the  assent  of  the  national 
legislature  ought  not  to  be  required  thereto."! 

This  resolution  was  agreed  to  by  the  committee  of  the 
whole,  just  as  it  was  when  offered,  but  it  was  altered  by 
the  committee  of  detail  in  drafting  it  into  the  form  of  a 
constitutional  provision,  by  leaving  out  the  latter  clause, 
to- wit,  ''and  that  the  asseyit  of  the  national  legislature 
ought  not  to  be  required  thereto , ' '  so  that  it  was  made  to 
read  as  follows  : 

Art.  19.  "On  application  of  the  legislatures  of  two- 
thirds  of  the  states  in  the  union  for  the  amendment  of 
this  constitution,  the  legislature  of  the  United  States 
shall  call  a  convention  for  that  purpose."   | 

This  draft  of  the  constitution,  after  some  changes  as 
to  other  parts  of  it,  was  referred  to  a  committee  of  re- 


*  McCulloch  V.  Maryland,  4  Wheat,  416. 

t  Elliott's  Debates,  vol.  i,  p.  145.  J  Ibid.,  p.  230. 


INTERCOURSE   AND   TRADE,    ETC.  301 

vision,  known  as  the  committee  on  style,  and  that  com- 
mittee changed  this  article  by  attempting  to  insert  in  it 
a  power  not  agreed  to  by  the  convention,  and  which  it 
was  doubtful  that  the  convention  would  agree  to. 

As  Hon.  Gouverneur  Morris  of  that  committee 
claimed  to  have  rewritten  the  whole  of  the  constitution, 
and  to  have  made  some  changes  in  it,  to  him  personally 
may  be  ascribed  the  entire  credit  of  the  apparent  con- 
fusion in  this  article.  As  he  was  so  zealous  an  advocate 
of  establishing  a  sovereign  government,  which  could  not 
possibly  be  done,  as  long  as  the  states  had  authority  to 
alter,  amend  or  change  the  whole  plan  of  its  powers  and 
duties,  it  may  be  that  the  confused  form  the  authority 
to  amend  the  constitution  appears  in,  was  intentional  on 
his  part.  But  by  so  covering  that  addition  to  the  article 
he  left  uncovered  the  provision  agreed  to  by  the  commit- 
tee of  the  whole,  of  the  convention,  to- wit,  that  the  states, 
or  the  people  thereof,  should  have  the  right  to  amend  the 
articles  of  the  federal  union  without  the  assent  of  the 
congress,  or  of  any  other  department  or  officer  of  the 
federal  union  thereto. 

To  have  given  to  the  congress  and  the  state  legisla- 
tures authority  to  enlarge  the  powers  of  the  congress, 
or  to  reduce  the  powers  of  the  congress,  would  have 
transferred  the  sovereign  authority  from  the  people  to 
them,  and  would  have  established  all  that  is  claimed  by 
the  nationalist ;  for  that  would  have  vested  the  United 
States  congress  with  sovereign  authority,  and  conse- 
quently have  divested  the  people  of  it. 

Conventions  being  the  only  organs  through  which  the 
sovereign  people  express  their  sovereign  will,  whatever 
amendments  to  the  constitution  may  be  proposed  by  a 
federal  convention ;  changing  the  form  of  the  govern- 
ment, or  its  powers  ;  or  the  race  of  people  to  constitute 


302  CONSTITUTION   OF   THE   UNITED   STATES. 

the  national  family,  must  be  acted  on  by  conventions  of 
the  states,  and  not  by  the  legislatures  of  the  states,  as 
claimed  by  the  late  Justice  Story,  in  his  Commentaries 
on  the  Federal  Constitution.* 

Suppose,  after  the  legislatures  of  two-tliirds  of  the 
states  had  called  for  a  federal  convention,  the  congress 
should  neglect  to  call  it.  That  duty  being  a  mere  minis- 
terial one,  could  the  states  go  on  and  hold  the  convention 
without  its  being  called  by  the  congress  ?  I  think  they 
could  ;  at  all  events,  should  the  states  hold  the  conven- 
tion and  propose  amendments,  which  would  afterward  be 
ratified  by  conventions  in  three-fourths  of  the  states, 
there  is  no  authority  in  the  union  that  could  nullify  the 
amendments  so  made  to  the  constitution. 

The  representatives  in  the  congress  being  elected  every 
two  years,  there  is  no  probability  that  the  members 
thereof  would  either  fail  or  refuse  to  perform  a  plainly- 
declared  duty  under  the  constitution,  especially  if  there 
was  a  reasonable  hope  of  the  amendments  desired  to  be 
proposed  by  the  federal  convention  being  ratified  by  con- 
ventions in  three-fourths  of  the  states. 

On  the  other  hand,  suppose  the  congress  should  desire 
to  enlarge  its  own  powers  by  amendments  to  be  proposed 
by  two-thirds  of  each  house  thereof,  with  a  hope  of  hav- 
ing them  ratified  by  the  legislatures  of  three-fourths  of 
the  states,  the  legislatures  of  the  states  would  not  be 
likely  to  ratify  them  unless  extraordinary  influence  could 
be  brought  to  bear  on  them.  This  was  done  in  recon- 
structing the  states  on  the  southern  side  of  the  late  civil 
war,  and  it  must  be  admitted  that  such  amendments 
were  accomplished  by  coercive  means  ;  that  an  entire 
revolution  of  the  American  system  of  government  would 


*  Story's  Com.  on  Con.,  Sec.  1S32. 


INTERCOURSE   AND  TRADE.  ETC.  303 

have  resulted  but  for  a  conservative  judiciary,  who  pre- 
vented it  by  interpretation. 

Or  suppose  the  wealthy  citizens  of  the  countr>'  should 
desire  to  change  the  federal  republic  into  an  aristocracy 
of  wealth,  and  provide  for  perpetuating  their  wealth  in 
their  owti  families.  After  infiuenciug  the  congress  to  pro- 
pose such  amendments  as  they  wanted,  they  might  seek 
to  control  the  election  of  the  legislatures  in  enough  states 
to  ratify  their  amendments,  by  the  skillful  use  of  money 
in  buying  up  the  public  newspapers,  and  engaging  the 
services  of  able  speakers  to  stump  the  states  to  be  carried 
against  the  wall  of  the  people  ;  or  they  might  induce  the 
congress  to  take  control  of  elections  in  the  several  states 
under  pretense  of  regulating  the  election  of  representa- 
tives to  the  congress,  and  presidential  electors,  and  de- 
prive those  citizens  who  were  opposed  to  the  revolution 
from  voting,  and  in  that  way  carry  the  election  of  repre- 
sentatives to  the  legislature,  and  by  either  mode  secure 
enough  of  the  states  to  ratify  the  amendments  to  the 
constitution. 

If  the  congress  and  the  legislatures  of  the  states  are 
authorized  to  so  amend  the  constitution  as  to  change  the 
form  of  the  government,  the  action  of  the  congress  and 
the  legislatures  of  the  states  would  be  political  in  char- 
acter, and  therefore  beyond  the  reach  of  the  judiciary 
department,  and  there  would  be  no  remedy  except  in  re- 
sorting to  the  great  principle  set  forth  in  the  Declaration 
of  Independence,  of  exercising  the  right  of  the  people  to 
change  their  government  at  will. 

The  proviso  that  no  amendments,  prior  to  the  year 
1S08,  affecting  the  first  and  fourth  clauses  of  the  ninth 
section  of  the  first  article  relates  to  the  importation  of 
African  slaves,  and  has  become  obsolete  by  the  thir- 
teenth, fourteenth  and  fifteenth  amendments  to  the  con- 
stitution, as  well  as  by  the  lapse  of  time. 


304  CONSTITUTION   OF   THE   UNITED   STATES. 

The  second  proviso,  to-wit:  "No  state  without  its 
consent  shall  be  deprived  of  its  equal  suffrage  in  the 
senate,"  still  stands  in  full  force  and  effect,  and  the  con- 
stitution can  not  be  so  amended  as  to  deprive  any  state 
of  its  equal  suffrage  in  the  senate,  even  by  the  sovereign 
people  themselves  without  the  consent  of  the  state  to  be 
deprived  thereof. 

This  provision  is  not  as  clear  as  it  might  have  been 
made,  it  was  never  contemplated  that  any  state  could  re- 
main in  the  union  without  equal  suffrage  in  the  senate, 
either  with  or  without  its  consent ;  but  it  was  thought 
that  some  of  the  small  states  might  prefer  to  consolidate 
themselves  into  one  larger  state,  as  provided  in  section 
three  of  article  four,  providing  that  ' '  no  new  state  shall 
be  formed  by  the  junction  of  two  or  more  states  without 
the  consent  of  the  legislatures  of  the  states  concerned,  as 
well  as  of  the  congress. ' ' 

Two  states  may  consent  to  be  merged  into  each  other, 
and  thereby  be  formed  into  a  new  state,  which  would 
necessarily  cause  one  or  the  other  to  lose  its  equal  repre- 
sentation in  the  senate  ;  but  as  long  as  each  remains  a 
separate  state,  they  must  each  be  represented  equally  in 
the  senate,  as  provided  in  section  three  of  article  one ; 
and  no  state  can  change  that  provision  by  consent  or 
otherwise. 

Nor  can  all  of  the  other  states  combine  and  deprive 
any  one  of  the  states  of  that  equal  suffrage  in  the  senate 
as  long  as  the  constitution  is  adhered  to, 

"State,"  as  used  in  this  connection,  means  the  politi- 
cal organization  of  the  states. 

Article  VI. 
Par,   I.   "All  debts   contracted   and   engagements  en- 
tered into,  before  the  adoption  of  this  constitution,  shall 


INTEkCOURSE   AND   TRADE,  ETC.  305 

be  as  valid  against  the  United  States  under  this  constitu- 
tion as  under  the  confederation." 

Par.  2.  "  This  constitution  and  the  laws  of  the  United 
States,  which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the 
land ;  and  the  judges  in  every  state  shall  be  bound 
thereby,  any  thing  in  the  constitution  or  laws  of  any 
state  to  the  contrarj^  notwithstanding." 

Par.  3.  "The  senators  and  representatives,  before 
mentioned,  and  the  members  of  the  several  state  legisla- 
tures, and  all  executive  and  judicial  ofl&cers,  both  of  the 
United  States  and  of  the  several  states,  shall  be  bound  by 
oath  or  aflBrmation  to  support  this  constitution,  but  no 
religious  test  shall  ever  be  required  as  a  qualification  to 
any  ofl&ce  or  public  trust  under  the  United  States. 

The  second  and  third  paragraphs  of  this  article  so 
forcibly  bear  on  the  judicial  powers  that  they  were  con- 
sidered somewhat  at  length  in  the  comments  on  the 
judiciary  department ;  they  however  perform  so  impor- 
tant a  part  in  construing  the  constitution  that  they 
should  be  considered  more  minutely,  although  it  may 
cause  a  repetition  of  some  of  the  thoughts  heretofore 
expressed. 

The  first  paragraph  of  this  article  assumes  all  of  the 
debts  or  engagements  of  the  confederation,  and  makes 
them  debts  and  engagements  of  the  more  perfect  union. 
It  is  however  true,  the  jurisdiction  of  the  United 
States  was  extended  by  the  constitution  to  other  subjects 
of  government  and  their  taxing  powers  greatly  increased, 
to  enable  them  the  better  to  provide  for  maintaining  the 
governmental  agency  of  the  union  and  its  general  welfare, 
and  to  enable  the  officials  to  discharge  their  duties  and 
trusts  as  public  agents. 


306  CONSTITUTION   OF   THK  UNITED   STATES. 

By  a  well-established  rule  of  international  law  a  change 
in  the  form  of  government  does  not  relieve  the  nation  of 
its  debts  and  engagements  ;  hence  the  debts  and  obliga- 
tion of  the  confederation  were  in  law  obligations  of  the 
more  perfect  union.  The  government  is  not  the  nation, 
but  simply  the  organ  through  which  the  nation  expresses 
its  will  ;  therefore  every  debt  or  engagement  of  the 
United  States  under  their  government  as  a  confederation 
would  remain  debts  and  engagements  of  whatever  gov- 
ernment might  have  been  formed  ;  hence  the  assuming 
of  the  debts  and  engagements  of  the  confederation  was  no 
more  than  the  United  States  were  compelled  to  do. 
Furthermore,  in  the  change  from  the  confederation  to  the 
more  perfect  union  each  state  that  had  constituted  a  part 
of  the  confederation  became  a  member  of  the  more  per- 
fect union  without  changing  the  character  of  the  govern- 
ment from  a  federal  republic,  and  without  changing  the 
name  from  that  of  "  The  United  States  of  America,"  and 
without  changing  the  people  who  composed  the  states 
of  the  union  ;  hence  the  United  States  under  the  new 
organization  were  bound  to  assume  the  debts  and  engage- 
ments of  the  confederation. 

The  second  paragraph  of  this  article  makes  the  con- 
stitution, laws  made  in  pursuance  thereof,  and  all  treaties 
made  and  to  be  made,  the  supreme  law  of  the  land. 
Laws  made  in  pursuance  of  the  constitution  necessarily 
consist  of  laws  that  aid  in  putting  it  into  practical  opera- 
tion, and  differ  widely  from  laws  made  under  authority 
thereof  ;  the  latter  being  laws  that  are  authorized  by  the 
constitution,  though  not  required  to  give  that  instrument 
force  and  effect.  In  one  case  the  congress  is  in  duty 
bound  to  pass  the  law  to  aid  in  the  execution  of  the  con- 
stitution, while  in  the  other  case  the  congress  exercises  its 
discretion.     The  laws  made  in  pursuance  of  the  constitu- 


INTERCOURSE   AND   TRADE,    ETC.  307 

tion,  treaties  made  or  that  may  be  made  uudcr  authority  of 
the  United  States,  and  the  constitution  itself,  are  declared 
to  constitute  the  supreme  law  of  the  land  ;  and  ' '  the 
judges  in  every  state  shall  be  bound  thereby,  any  thing 
in  the  constitution  or  laws  of  any  state  to  the  contrary 
notwithstanding. ' ' 

This  has  been  construed  by  the  Supreme  Court  of  the 
United  States  to  include  all  laws  enacted  by  the  congress 
under  or  in  conformity  wath  the  constitution,  whether 
made  in  pursuance  of  that  instrument,  or  made  by  au- 
thority thereof.  The  supreme  court  having  appellate 
jurisdiction  of  all  cases  arising  under  any  law  enacted  by 
the  congress,  that  interpretation  must  stand  until  it  shall 
be  overruled  by  that  court. 

To  more  clearly  bring  the  distinction  between  laws 
passed  in  pursuance  of  the  constitution,  and  such  as  are 
enacted  under  or  by  permission  thereof,  it  should  be 
borne  in  mind  that  there  are  powers  that  are  exclusively 
within  the  jurisdiction  of  the  states,  and  there  are  pow- 
ers of  which  the  states  and  the  United  States  are  vested 
with  concurrent  jurisdiction.  Among  this  character  of 
powers  there  appears  in  the  fourth  article  the  following  : 

' '  Full  faith  and  credit  shall  be  given  in  each  state  to 
the  public  acts,  records,  and  judicial  proceedings  of  every 
other  state.  A?id  the  congress  may  by  general  lazi's  pre- 
scribe the  manner  in  which  such  acts,  records  and  proceed- 
ings shall  be  proved,  arid  the  effect  thereof.'' 

The  several  states  being  vested  with  eminent  domain 
over  the  lands  within  their  respective  boundaries,  and 
each  state  being  authorized  to  construct  its  own  govern- 
ment, and  organize  its  own  judiciary,  and  make  its  own 
local  laws,  each  state  must  have  authority  to  prescribe 
the  evidences  of  title  to  the  lands  therein,  the  evidence 
of  the  public  acts  and  how  they  shall  pass  and  be  proven, 


3o8  CONSTITUTION   OF   THE   UNITED   STATES. 

and  determine  which  of  the  courts  thereof  shall  constitute 
courts  of  record,  and  how  the  official  acts  of  each  shall 
be  showTi. 

In  each  of  these  particulars,  the  courts  of  the  re- 
spective states,  as  well  as  the  supreme  court  of  the  United 
States,  recognizes  the  laws  of  the  respective  states  as  the 
paramount  law  on  these  subjects,  notwithstanding  the 
act  of  congress  may,  and  in  many  instances  does,  conflict 
with  the  state  law  relating  thereto. 

There  are  other  instances  wherein  the  jurisdiction  of 
the  states  and  of  the  federal  union  are  concurrent,  where 
the  state  law  is  permitted  to  prevail  over  the  federal  law, 
which  might  be  shown. 

But  this  is  regarded  as  sufficient  to  prove  that  there  is 
a  broad  distinction  between  laws  passed  in  pursuance  to 
the  constitution  and  the  laws  passed  under  that  instru- 
ment. 

All  treaties  made  or  to  be  made  under  authority  of  the 
United  States  are  declared  to  be  the  supreme  law  of  the 
land  ;  but  treaties  are  the  only  character  of  laws  made 
under  authority  of  the  United  States  that  are  declared 
to  be  the  supreme  law,  and  no  other  laws  made  under  or 
by  the  permission  of  the  constitution  are  to  be  regarded 
as  any  part  of  the  supreme  law. 

As  shown  in  considering  the  judiciary,  this  paragraph 
also  expressly  requires  the  judges  of  the  state  courts  to 
be  bound  by  the  constitution  and  laws  of  the  United  States 
made  in  pursuance  thereof,  and  by  all  treaties  made  and 
to  be  made  under  authority  of  the  United  States,  as  the 
supreme  law  of  the  land,  etc. 

This  pro\nsion  refers  to  the  judges  of  the  state  courts 
in  their  official  capacity,  and  was  intended  to  bind  them 
as  judicial  officers  in  the  discharge  of  their  judicial 
duties;    for  a  subsequent  paragraph  of   this  article  re- 


INTERCOURSE   AND   TRADE,    ETC.  309 

quires  the  judges  of  the  state  courts,  in  conjunction  with 
all  state  and  federal  officers,  to  take  an  oath  to  support 
the  constitution.  This  paragraph,  therefore,  can  only 
apply  to  the  office  of  the  judges  of  the  state  courts,  and 
requires  them  as  judges  to  be  bound.  They  must,  there- 
fore, exercise  a  judicial  discretion  in  ascertaining  the 
meaning  of  the  different  provisions  of  the  constitution, 
also  a  judicial  discretion  in  ascertaining  whether  the  law 
they  may  be  called  on  to  obey  was  made  in  pursuance  of 
the  constitution,  and  also  a  judicial  discretion  in  ascer- 
taining w'hether  the  treaties  they  may  be  called  on  to 
obey  w'ere  made  under  authority  of  the  United  States ; 
and  should  the  judges  of  the  state  courts  find  that  the 
treaties  were  not  made  under  authority  of  the  United 
States,  or  that  the  laws  involved  were  not  made  in  pur- 
suance of  the  constitution,  they  could  not  treat  them  as 
any  part  of  the  supreme  law  of  the  land  without  disre- 
garding their  oaths  of  office  ;  and  they  must  interpret 
the  constitution  for  themselves,  and  can  not  rely  on  the 
supreme  court  of  the  United  States  to  interpret  that  in- 
strument for  them. 

It  is  claimed  by  the  nationalist  that  the  last  clause  of 
this  second  paragraph  was  intended  to  put  at  rest  all 
possible  danger  of  any  conflict  between  the  judiciary  of 
the  states  and  that  of  the  United  States.  But  the  first 
clause  of  this  paragraph  declares  what  shall  be  the  su- 
preme law  of  the  land,  and  the  third  paragraph  requires 
the  judges  of  the  state  courts,  and  all  other  officers  of 
the  states,  and  of  the  United  States,  to  be  bound  by  oath 
or  affirmation  to  support  the  constitution,  which  neces- 
sarily includes  all  laws  made  in  pursuance  of  the  consti- 
tution ;  and  all  treaties  made,  or  to  be  made,  especially 
as  the  organization  of  the  judiciary  of  the  United  States 
gives  to  the  supreme  court  appellate  jurisdiction  of  all 


3IO         CONSTITUTION   OP   THE   UNITED   STATES. 

cases  arising  under  the  constitution  ;  laws  made  by  the 
congress ;  treaties  made  by  authority  of  the  United 
States  ;  controversies  between  citizens  of  different  states, 
etc.,  render  it  impossible  for  any  conflict  between  the 
jurisdiction  of  the  state  and  federal  courts,  without  said 
provision.  So  that  it  was  a  senseless  and  idle  provision, 
unless  it  was  intended  to  perform  some  other  function, 
and  it  must  therefore  be  construed  to  have  vested  the 
state  courts  with  judicial  discretion,  not  to  prevent  possi- 
ble conflicts  between  the  state  and  federal  courts. 

Some  light  may  be  drawn  from  the  proceedings  of  the 
convention  on  this  subject. 

This  provision,  as  adopted  by  the  committee  of  the 
whole,  and  as  prepared  by  the  committee  on  detail,  in 
transforming  it  from  a  resolution  to  a  provision  of  the 
constitution,  differed  from  the  wording  of  it  by  the  com- 
mittee on  style.     The  resolution  was  : 

7.  ''Resolved,  That  the  legislative  acts  of  the  United 
States,  made  by  virtue  and  in  pursuance  of  the  articles 
of  union,  and  all  treaties  made  and  ratified  under  the 
authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  respective  states,  as  far  as  those  acts  or 
treaties  shall  relate  to  the  said  states  or  their  citizens  and 
inhabitants;  and  that  the  judiciaries  of  the  several 
states  shall  be  bound  thereby  in  their  decisions  any  thing 
in  the  respective  laws  of  the  individual  states  to  the  con- 
trary notwithstanding. ' '  * 

This  resolution,  in  conjunction  with  the  other  resolu- 
tions to  go  into  the  constitution,  were  put  into  the  hands 
of  a  committee  to  reduce  them  to  proper  forms  as  consti- 
tutional provisions,  known  as  the  committee  of  detail. 
That   committee  made  no   change   in  the   substance, 

*  Elliott's  Debates,  vol.  i,  p.  221. 


INTERCOURSE    AND   TRADE,    ETC.  3II 

though  it  changed  the  language  somewhat  so  as  to  read 
as  follows  : 

Art.  8,  "The  acts  of  the  legislature  of  the  United 
States  made  in  pursuance  of  this  constitution,  and  all 
treaties  made  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  several  states,  and  of 
their  citizens  and  inhabitants  ;  and  the  judges  in  the 
several  states  shall  be  bound  thereby  in  their  decisions, 
any  thing  in  the  constitutions  or  laws  of  the  several 
states  to  the  contrary  notwithstanding."* 

It  is  clear  from  the  foregoing  quotation  that  the  judges 
of  the  states  were  expected  to  interpret  the  constitution 
and  ascertain  whether  a  law  was  made  in  pursuance  of 
the  constitution,  and  also  to  ascertain  if  a  treaty  was 
made  under  authority  of  the  United  States. 

It  will  be  remembered,  however,  that  at  the  time  that 
provision  was  agreed  to  by  the  convention,  the  organiza- 
tion of  the  judiciary  department  did  not  vest  jurisdiction 
in  the  federal  court  of  actions  arising  under  the  constitu- 
tion ;  it  was  changed  by  the  committee  on  style,  or  rather 
by  the  Hon.  Gouverneur  Morris,  and  as  that  change  was 
made,  it  was  necessary  to  change  this  paragraph  also, 
but  failing  to  change  the  paragraph  under  consideration, 
it  stands  in  flagrant  conflict  with  the  organization  of  the 
judiciary  department,  and  sustains  Messrs.  Jefferson, 
Jackson  and  Lincoln  in  denying  that  the  supreme  court 
was  vested  with  exclusive  authority  to  finally  interpret 
the  constitution. 

Doubtless  the  Hon.  Gouverneur  Morris  overlooked  the 
conflict  he  was  leaving  against  his  hope  of  giving  the 
supreme  court  such  autocratic  powers,  as  exclusive  au- 
thority to  finally  interpret  the  federal  constitution  must 


*  Elliott's  Debates,  vol.  i,  p.  227. 


312  CONSTITUTION    OF   THE   UNITED    STATES. 

have  vested  it  with.     Or   he   feared  that  so  radical   a 
change  "would  alarm  others  or  shock  their  self-love." 

If  the  organization  of  the  judiciary  of  the  United 
States  had  remained  as  it  was  agreed  to  by  the  conven- 
tion, and  as  expressed  by  the  committee  on  detail,  the 
constitution  would  have  been  above  the  Supreme  Court 
of  the  United  States,  as  well  as  above  every  other  de- 
partment of  the  United  States,  and  of  the  states  ;  and 
not  subject  to  be  changed  or  modified  by  interpretation 
by  the  supreme  court. 

As  originally  drafted  the  constitution  could  not  be 
changed  by  interpretation  by  any  of  the  departments,  or 
any  tribunal,  except  the  sovereign  people  in  sovereign 
conventions  ;  therefore,  all  courts  were  compelled  to  give 
to  that  instrument  their  own  construction,  and  it  was 
highly  important  to  designate  what  should  constitute  the 
supreme  law,  and  to  require  the  judges  of  the  state  courts 
to  be  bound  thereby. 

The  language  of  this  paragraph,  as  well  as  that  used  in 
the  various  provisions  of  the  constitution  bearing  on  the 
subject,  shows  that  it  vests  the  judiciary  of  the  several 
states  with  authority  to  construe  the  constitution  and 
determine  for  themselves  whether  any  act  of  the  con- 
gress be  in  pursuance  of  the  constitution  or  simply 
authorized  by  it ;  and  to  determine  whether  any  treaty 
was  made  under  authority  of  the  United  States.  How- 
ever, since  the  change  put  into  the  constitution,  giving 
to  the  Supreme  Court  of  the  United  States  "jurisdic- 
tion of  all  cases  arising  under  the  constitution  or  laws 
of  congress,"  and  since  the  supreme  court  so  interprets 
the  constitution  as  to  authorize  it  to  finally  interpret  that 
instrument  and  holds  that  every  law  passed  by  the  con- 
gress shall  constitute  parts  of  the  supreme  law,  the  dis- 
tinction between  laws  passed  in  pursuance  of  the  consti- 


INTERCOURSE   AND   TRADE,    ETC.  313 

tution  and  those  passed  by  authority  thereof   is  made 
wholly  unavailing. 

As  the  United  States  constitutes  a  part  of  the  govern- 
mental machinery  of  the  states,  they  constitute  a  part  of 
the  governmental  machinery  of  the  United  States  ;  every 
officer  of  each  of  the  states,  as  well  as  those  of  the  United 
States,  ought  to  be  required  to  take  an  oath  to  support 
the  constitution  of  the  United  States. 

Article  VII. 

' '  The  ratification  of  the  conventions  of  nine  states 
shall  be  sufficient  for  the  establishment  of  this  constitu- 
tion between  the  states  so  ratifying  the  same." 

It  should  be  remembered  that  this  constitution  was 
formed  under  authority  of  the  confederation.  An  at- 
tempt was  made  to  call  or  convene  a  confederate  con- 
vention of  delegates  from  the  states,  but  that  effort  fell 
through.  Afterward  the  congress  of  the  confederation 
called  a  convention  according  to  authority  contained  in 
the  articles  thereof  to  meet  in  Philadelphia,  and  it  was  in 
that  convention  and  under  that  authority  the  states  sent 
delegates  to  amend  the  articles  thereof,  to  make  them 
adequate  to  the  exigencies  of  government  and  the  better 
to  preserve  the  union. 

The  Articles  of  Confederation,  or  the  Constitution  of 
1777,  as  it  was  frequently  called,  expressly  declared  that 
the  states  should  retain  all  of  their  sovereignty  and  juris- 
diction as  free  and  independent  states.* 

As  sovereign  states,  each  had  a  right  to  speak  and  act 
for  itself  in  all  matters  relating  to  any  changes  in  its 
form  of  government  or  its  relations  to  other  sovereign- 
ties ;  for,   being  sovereign,   its  will   was  supreme,    and 


*  Articles  2  and  3,  Confederation. 


314  CONSTITUTION   OF   THE   UNITED   STATES. 

could  not  be  limited.  However,  sovereign  nations  or 
states  may  bind  themselves  by  voluntary  engagements, 
by  treaties,  or  compacts  of  union,  without  parting  with 
their  respective  sovereignty.* 

The  states,  in  forming  the  compact  of  union  under  the 
Articles  of  Confederation,  obligated  themselves  to  abide 
by  acts  of  the  United  States  in  the  congress  assembled, 
on  all  questions  committed  to  the  congress  by  the  articles 
thereof ;  and,  as  provided  in  said  articles,  agreed  that  the 
union  should  be  perpetual  unless  changed  by  the  con- 
gress and  afterw^ard  confirmed  by  the  legislature  of  every 
state. t 

It  will  also  be  observ^ed  that  at  the  time  the  constitu- 
tion was  constructed  the  states  were  sovereign,  and  must 
have  continued  so  until  altered  by  the  adoption  of  the 
new  constitution,  if  in  fact  the  new  constitution  had 
the  effect  of  changing  the  relation  of  the  states  to  the 
union. 

The  congress,  instead  of  proposing  specific  amend- 
ments to  the  articles  of  confederation,  called  a  conven- 
tion to  propose  them ;  that  convention  was  approved  of 
by  the  legislatures  of  the  states,  as  manifested  in  the  ap- 
pointment of  delegates  thereto.  That  convention  changed 
the  character  of  the  confederation,  not  only  by  enlarg- 
ing the  powers  thereof,  but  changed  it  from  a  confedera- 
tion of  the  political  corporation  of  the  several  states 
only,  to  a  confederation  including  the  sovereign  people 
of  the  several  states,  so  that  (as  shown  in  second  chapter), 
under  the  Constitution  of  1787,  the  union  consists  of  a  con- 
federation of  both  the  political  corporations  of  the  states 
and  of  the  sovereign  people  of  the  several  states.  When 
the  new  constitution  was  completed  by  the  convention,  it 


*Vatteirs  Law  of  Nations,  Book  I,  Chap,  i,  Sec.  10. 
t  Article  8,  Confederation, 


INTERCOURSE    AND    TRADE,    ETC.  315 

was  reported  to  the  congress,  which  approved  it  and  re- 
ferred it  to  the  legislatures  of  the  several  states,  with  the 
recommendation  that  they  call  conventions  respectively  to 
ratify  the  same,  as  had  been  advised  by  the  convention. 
The  legislatures  manifested  their  approval  of  it  by  call- 
ing conventions  in  their  respective  states  to  ratify  the 
same ;  and  the  states,  in  conventions  consisting  of  dele- 
gates chosen  by  the  people  thereof  for  the  express  pur- 
pose of  considering  the  provisions  of  the  new  constitu- 
tion, with  authority  from  the  people  themselves  to  ratify 
the  same  if  approved  by  the  said  delegates.  The  dele- 
gates in  said  conventions  in  each  of  said  states  ratified 
the  new  constitution  in  the  order  of  time,  and  with 
recommendation  of  the  amendments  thereto  as  shown  in 
the  second  chapter  of  this  review. 


3l6  CONSTITUTION   OF   THE)  UNITKD   STATES. 


CHAPTER   X. 

REI.ATES  TO  THE  AMENDMENTS  TO   THE  CONSTITUTION^ 


Article  I. 

"  Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof; 
or  abridging  the  freedom  of  speech,  or  of  the  press ;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to  pe- 
tition the  government  for  redress  of  grievances. ' ' 

The  provisions  of  the  whole  of  this  article  are  included 
within  the  spirit  of  the  constitution,  and  if  the  United 
States  government  be  considered  as  a  mere  agent  of  the 
states  and  people  thereof,  and  a  part  of  the  government 
of  each  of  the  states,  the  congress  can  exercise  no  pow- 
ers except  those  that  are  granted  to  it  by  the  constitu- 
tion, and  neither  of  the  powers  expressly  prohibited  to 
the  congress  by  this  article  is  included  in  any  grant  of 
power  to  the  congress  by  the  constitution.  Without  the 
prohibitions  contained  in  this  article,  the  congress  could 
not  exercise  either  of  the  powers  named  without  violat- 
ing the  constitution.  However,  the  rights  sought  to  be 
protected  by  the  provisions  of  this  article  were  held  so 
dear  to  the  people  of  the  respective  states,  that  the  con- 
gress was  expressly  prohibited  from  interfering  with 
them.  In  each  of  the  states  these  powers  were  reserved 
to  the  people,  and  withheld  from  the  grant  of  powers  to 
their  respective  states  in  a  bill  of  rights.  There  being 
no  bill  of  rights  connected  with  the  constitution  of  the 
United  States,  this  article  and  the  other  nine  articles,  rat- 
ified at  the  same  time,  it  was  hoped,  in  a  measure,  would 
supply  its  place. 


AMENDMENTS   TO    THE    CONSTITUTION.  317 

That  the  congress  should  have  authority  to  establish  a 
national  religion  is  so  repugnant  to  free  government  and 
religious  liberty,  that  it  needs  no  argument  to  show  the 
importance  of  expressly  prohibiting  the  exercise  of  that 
power.  And  authority  in  congress  to  abridge  the  free- 
dom of  speech  or  of  the  press,  would  arm  the  congress 
with  power  to  distroy  the  freedom  of  the  people,  and 
enable  it  to  mount  over  other  barriers  or  checks  placed 
upon  it  by  the  other  provisions  of  the  constitution  ;  hence 
the  prohibitions  contained  in  this  article  can  not  be  too 
highly  esteemed. 

However,  notwithstanding  this  provision  of  the  con- 
stitution, the  congress  in  1798  passed  what  was  familiarly 
known  as  the  alien  and  sedition  acts.  Which  declared 
it  to  be  unlawful  for  any  individual,  or  publisher  of  a 
newspaper,  to  speak  or  publish  offensive  language  of  or 
concerning  the  president  or  any  of  his  cabinet,  or  any 
public  officer,  and  prescribed  a  punishment,  by  fine  and 
imprisonment. 

That  act  soon  passed  out  of  favor,  and  was  so  heartily 
condemned  by  the  American  people  as  to  become  a  dead 
letter  before  it  expired  by  limitation.  Justice  Chase,  of 
the  supreme  court,  who  more  harshly  than  either  of  the 
other  justices  executed  said  law,  was  arraigned  for  im- 
peachment, not  so  much  for  executing  that  act  as  for  his 
coarseness  in  executing  it,  and  indulging  in  political  bias 
while  on  the  bench,  particularly  in  his  charges  to  the 
juries.  The  impeachment  failed  on  account  of  his  serv- 
ices in  the  Revolutionar}-  War  and  in  the  organization 
of  the  government.  The  alien  and  sedition  act  is  now 
held  to  be  repugnant  to  the  constitution  by  the  American 
people  generally,  though  during  the  late  civil  war  the 
papers  that  published  news  favorable  to  the  rebellion 
•were  suppressed,  in  flagrant  violation  of  this  article  of 
amendment  to  the  constitution. 


31 8  CONSTITUTION   OF   THE   UNITED   STATES. 

Article  II. 

"A  well-regulated  militia  being  necessary  to  the  se- 
curity of  a  free  state,  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed. ' ' 

The  third  paragraph  of  section  lo,  article  I,  of  the 
constitution,  prohibiting  the  states  from  keeping  troops, 
or  ships  of  war,  in  time  of  peace,  and  the  provisions  of 
paragraphs  13,  14  and  15,  of  section  8,  of  article  I,  giv- 
ing to  the  United  States  authority  to  regulate  the  land 
and  naval  forces,  and  to  provide  for  calling  out  the  mili- 
tia, and  of  organizing,  arming,  and  disciplining  the 
same,  made  it  necessary  to  qualify  those  provisions,  by 
this  article  of  amendment  to  the  constitution,  to  enable 
the  states  to  maintain  a  militia. 

Article  III. 

"No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner,  nor  in  time 
of  war  but  in  a  manner  to  be  prescribed  by  law. ' ' 

The  quartering  of  the  soldiers  in  the  houses  of  the 
citizens  has  been  resorted  to  by  tyrants  to  discover  the 
patriots  who  love  their  country  more  than  their  ruler,  to 
vent  his  spleen  on,  and  to  show  his  power  to  the  people, 
by  punishing  those  patriots,  to  hold  others  in  such  awe 
as  to  prevent  them  from  rebelling  against  his  usurped 
powers. 

But,  furthermore,  power  to  quarter  troops  in  the 
houses  of  the  citizens,  is  utterly  inconsistent  with  the 
sacredness  with  which  the  home  government  and  the  se- 
curity of  the  home  castle  are  held  under  the  laws  of  all 
English  speaking  people.  And  power  to  quarter  troops  in 
one's  house  at  a  time  he  does  not  want  them  there,  not 
only  curtails  his  liberties,  but  infringes  on  his  right  to 
use  his  own  property  as  he  pleases,  in  a  lawful  way. 


AMENDMENTS   TO   THE   CONSTITUTION.  319 

This  article,  therefore,  was  necessary,  not  only  to  quiet 
the  fears  of  the  people,  but  as  a  limitation  on  the  power 
of  the  pubHc  oflEicials,  and  as  security  against  changing 
the  character  of  the  government  by  gradual  usurpations. 

AliTlCI^E  IV. 

"The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated  ;  and  no  warrants 
shall  issue  but  upon  probable  cause,  supported  by  oath 
or  affirmation,  and  particularly  describing  the  place  to  be 
searched  and  the  persons  or  things  to  be  seized." 

This  article,  like  the  third,  guards  the  people  against 
the  use  of  probable  forces  to  aid  the  officials  in  enforcing 
usurped  powers,  should  they  become  corrupt  enough  to 
desire  a  change  in  the  government,  by  searching  for  evi- 
dences of  what  they  might  term  treason  on  the  part  of 
patriotic  citizens  to  deter  others  from  asserting  their 
rights  and  liberties  as  secured  by  the  constitution.  But, 
to  be  subject  to  be  searched  by  arrogant  officials,  clothed 
with  small  official  powers,  would  be  extremely  annoying 
and  insulting  to  one's  family  as  well  as  to  himself;  still, 
where  one  is  suspected  of  concealing  persons  or  things 
unlawfully,  and  there  are  reasonable  grounds  for  that 
suspicion,  backed  by  oath  or  affirmation  of  the  guilt  of  the 
accused,  the  authority  to  search  is  granted  in  this  article 
by  a  negative  pregnant ;  for  the  provision  against  un- 
reasonable searches  grants  the  right  to  make  reasonable 
searches,  when  applied  for  under  oath  or  affirmation  of 
the  guilt  of  the  accused. 

This  article  is  also  valuable  to  allay  apprehensions  of 
unreasonable  searches,  and  to  protect  the  people  against 
their  use  to  aid  in  changing  the  form  of  government,  and 
to  prevent  the  people  from  being  oppressed  by  corrupt 
officials. 


320  CONSTITUTION   OF   THE   UNITED   STATES, 

Article  V. 

"No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  in- 
dictment of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia  when  in  actual 
service,  in  time  of  war  or  pubHc  danger ;  nor  shall  any 
person  be  subject,  for  the  same  offense,  to  be  twice  put 
in  jeopardy  of  life  or  limb  ;  nor  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself,  nor  be  de- 
prived of  Hfe,  liberty,  or  property  without  due  process  of 
law  ;  nor  shall  private  property  be  taken  for  public  use 
without  just  compensation." 

This  article  contains  as  important  guards  to  the  liber- 
ties of  the  people  as  any  provision  in  the  constitution. 

As  no  one  can  be  punished  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment 
by  a  grand  jury,  and  in  addition  to  the  presentment  or 
indictment  of  a  grand  jury  there  must  be  a  verdict  of  a 
trial  or  petit  jury,  and  conviction  of  the  guilt  of  those  ac- 
cused of  capital  or  othen\dse  infamous  crime,  as  shown  by 
the  sixth  article  of  amendment,  which  is  as  follows  : 

Article  VI. 

"  In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  state  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been  pre- 
viously ascertained  by  law  ;  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation;  to  be  confronted 
with  the  witnesses  against  him  ;  to  have  compulsory  pro- 
cess for  obtaining  witnesses  in  his  favor,  and  to  have  the 
assistance  of  counsel  for  his  defense." 

Therefore,  an  accused  not  only  is  entitled  to  the  indict- 
ment or  presentment  of  a  grand  jury,  and  a  verdict  of  a 


AMENDMENTS   TO    THE    CONSTITUTION.  32 1 

petit  jur>-,  but  he  is  entitled  to  a  speedy  and  public  trial ; 
and  can  not  be  tried  in  a  prison  or  bastile  which  has  been  a 
cradle  or  nurser>'  for  so  much  tyranny  and  mischief  in  the 
world.  In  our  mother  country  persons  had  been  put  in 
prisons  on  spurious  charges  for  political  purposes,  and 
held  there  without  a  trial,  or  when  granted  a  trial  it 
was  conducted  in  the  prison  in  the  presence  only  of  the 
minions  of  the  tyrant,  often  private  enemies  of  the 
prisoner. 

These  tw^o  articles  supported  by  the  second  paragraph 
of  section  nine  of  article  one  of  the  constitution,  provid- 
ing for  the  writ  of  habeas  corpus  renders  it  utterly  impos- 
sible to  deny  to  any  one  a  speedy  and  fair  trial  before  a 
jur>'  of  his  own  state  and  district. 

These  rights  are  again  strengthened  by  the  eighth 
article  of  amendment,  which  provides  that  excessive  bail 
shall  not  be  required.  This,  of  course,  applies  only  to 
bailable  cases.  These  articles  of  amendment,  to  wit,  the 
fourth,  fifth,  sixth,  and  eighth,  include  the  necessar>'  pro- 
visions for  the  protection  of  the  personal  liberties  of  the 
citizens  not  contained  in  the  constitution,  as  it  was  when 
originally  adopted  by  the  states,  and  as  long  as  they  are 
respected  and  observed,  it  will  be  impossible  for  the  public 
officials  to  rise  above  the  people  ;  for  no  one  can  be  either 
denied  or  shielded  from  a  speedy  public  trial,  before  an 
impartial  jury  of  the  state  and  district  in  which  the 
crime  shall  have  been  committed.  As  said  in  discussing 
the  judiciary,  the  shielding  of  any  one  from  such  a 
trial,  without  extending  that  protection  to  all,  is  a  denial 
of  equal  protection  to  those  not  so  shielded,  and  society 
has  as  much  right  to  enforce  justice  as  the  accused  has  to 
demand  it.  Indeed,  there  is  more  danger  to  the  liberties  of 
the  people  in  shielding  a  class  of  offenders  from  a  speedy 
public  trial  by  a  jury  of  their  state  and  district,  than  can 
arise  out  of  a  denial  of  such  a  trial  to  any  one  ;  because,  the 


322  CONSTITUTION   OF   THE   UNITED   STATES. 

precedent  of  shielding  from  justice  lays  the  foundation  for 
the  establishment  of  privileged  classes,  in  repugnance  to 
civil  liberty;  for  civil  liberty  can  not  exist  on  any  other 
foundation  than  equality  of  rights  and  immunities  between 
all  citizens.  That  the  congress  has  violated  these  funda- 
mental principles  in  divers  ways  we  are  constrained  to 
admit,  notably,  among  the  instances  in  which  they  were 
ignored,  are  :  first,  the  passage  of  the  alien  and  sedition 
acts  ;  second,  the  passage  of  what  is  known  as  the  fugi- 
tive slave  acts,  protecting  civil  officers  against  trial  and 
punishment  for  violating  state  laws,  although  they  could 
not  be  tried  for  capital  or  otherwise  infamous  crimes 
committed  in  any  state,  by  the  federal  judiciary  or  any 
tribunal  of  the  United  States.  If  the  congress  had  au- 
thorized the  fugitive  slave  law  to  be  executed  by  the 
military  arm  of  the  United  States,  the  soldiers  could  have 
been  tried  and  punished  for  any  offense  committed  under 
orders  of  superior  officers,  by  court  martial  of  the  United 
States,  although  the  crime  may  have  been  committed  en- 
tirely in  any  one  of  the  states,  and  by  the  United  States 
authority,  it  would  have  been  excusable  in  shielding  them 
from  punishment  under  state  laws,  enacted  by  the  states 
while  in  rebellion  against  the  United  States.  For  every 
federal  law,  whether  it  be  a  provision  of  the  constitution 
or  an  act  of  congress  passed  in  pursuance  thereof,  consti- 
tutes a  part  of  the  supreme  law  of  the  land,  and  the  state 
judges  a-re  bound  by  it,  and  whenever  a  state  passes  a  law 
in  conflict  therewith  for  the  purpose  of  preventing  the 
federal  laws  being  executed,  such  state  would  be  in  rebel- 
lion against  the  United  States,  to  that  extent  at  least. 

The  Supreme  Court  of  the  United  States  not  only  sus- 
tains the  validity  of  that  act  of  congress,  but  carries  it 
far  enough  to  cover  cases  of  those  who,  while  acting 
under  orders  of  the  president,  wantonly  take  human  life, 
and  as  shown  in  a  former  chapter  of  this  review,  actually 


AMENDMENTS   TO   THE   CONSTITUTION.  323 

shielded  one  Mr.  Neagle,  who  shot  and  killed  Ex-Chief 
Justice  Terr>'  of  the  State  of  California,  from  a  trial  be- 
fore the  courts  of  that  state,  although  said  Naegle  could 
not  be  tried  in  any  court  or  before  any  tribunal  of  the 
United  States,  because  the  crime  had  been  committed 
entirely  within  that  state. 

These  cases  are  sufficient  to  show  a  gradual  taking 
away  of  the  most  valuable  limitations  in  the  constitution 
by  the  public  officials. 

Article  VII. 

"In  suits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved  ;  and  no  fact  tried  by  a  jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law." 

This  article  has  been  made  use  of  to  indicate  an  inten- 
tion on  the  part  of  the  makers  of  the  constitution,  to  vest 
the  federal  courts  with  a  common  law  jurisdiction  ;  but 
the  only  function  that  this  article  can  reasonably  be 
made  to  perform  on  that  subject,  is  to  prescribe  the  mode 
of  re-examining  cases  in  the  federal  courts  ;  and  the  fed- 
eral court  should  look  alone  to  the  organization  of  the 
judiciary  to  ascertain  the  jurisdiction  thereof.  Suppose 
this  article  could  be  twisted  into  vesting  the  federal 
courts  with  a  common  law  jurisdiction  ;  it  may  well  be 
inquired  what  common  law  they  would  have  jurisdiction 
of  ;  and  if  it  is  claimed  that  they  were  thereby  vested 
with  the  jurisdiction  of  the  common  law  of  England,  a 
pertinent  inquiry  arises  as  to  what  part  of  the  common 
law  of  England,  for  much  of  the  common  law  of  Eng- 
land relates  to  the  king  and  royal  family,  and  to  a  dis- 
tinction between  what  is  known  in  that  country  as  the 
nobility  and  the  common  people  ;  and,  surely,  it  will  not 
be  contended  that  this  article  inaugurates  the  English 


324  CONSTITUTION   OF   THE   UNITED   STATES. 

distinctions  in  society,  or  that  it  establishes  a  royal  family, 
or  a  king.*  But  if  this  article  be  interpreted  so  as  to  make 
it  refer  to  the  common  law  of  the  respective  states,  as  mod- 
ified by  the  statute  of  each  individual  state  in  which  a 
suit  may  arise,  and  to  be  enforced  in  the  state  adopting 
the  same,  there  is  no  conflict  between  its  provisions  and 
the  other  part  of  the  federal  constitution.  The  common 
law  of  the  states  in  which  any  suit  may  arise  and  be  pros- 
ecuted, should  alone  be  enforced  therein  by  the  federal 
courts.  For,  by  the  rules  of  the  common  law,  as  modi- 
fied by  the  statutes  of  the  state  in  which  a  contract  may 
be  made,  always  constitutes  a  part  of  the  contract  itself, 
and  without  considering  the  laws  existing  at  the  time  to 
interpret,  it  would  be  utterly  impossible  to  correctly  de- 
cide on  the  right  of  the  parties  to  any  contract. 

Adopting  this  interpretation  of  this  article,  it  provides 
valuable  protection  to  each  citizen  who  may  sue  or  be 
sued  in  a  federal  court  against  the  arbitrary  rulings  of  an 
autocractic  judge,  by  securing  to  them  a  jury  to  try 
their  controversies  according  to  the  rules  of  law  in  the 
state  where  the  contract  was  made,  in  all  cases  where  the 
amount  in  controversy  shall  be  twenty  dollars,  or  upwards. 

Article  VIII. 

"Excessive  bail  shall  not  be  required,  nor  shall  ex- 
cessive fines  be  imposed,  nor  cruel  and  unusual  punish- 
ment inflicted." 

These  eight  articles  of  amendment  to  the  constitution 
contain  limitations  on  the  United  States,  and  its  depart- 
ments, of  a  highly  valuable  character,  though  they  are 
not  the  only  limitations  thereon  ;  for  that  instrument  con- 
stitutes limitations  on  all  powers  granted,  and  excludes 
all  powers  not  granted  from  the  jurisdiction  of  the  United 

*Par.  8,  Sec.  9,  Art.  i,  Con. 


AMENDMENTS   TO   THE   CONSTITUTION.  325 

States.  So  that  the  greatest  limitations  on  the  United 
States  consist  in  the  failure  to  grant  powers  to  them. 

The  government  is  like  attorneys,  in  fact,  who  have  no 
powers  unless  they  be  embraced  within  their  letters  of 
attorneys  ;  the  United  States,  or  the  departments  thereof, 
have  no  powers  unless  the  grant  can  be  found  in  the 
federal  constitution,  which  is  the  letter  of  attorney  given 
by  the  people  to  them. 

Because  of  a  rule  of  interpretation  to  the  effect  that 
the  enumeration  of  specified  rights  reserv^ed  to  the 
people  might  be  held  in  particular  cases  to  exclude  other 
rights  not  expressed,  the  ninth  article  was  adopted,  as 
follows : 

Article  IX. 

' '  The  enumeration  in  the  constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others  re- 
tained by  the  people. ' ' 

This  article  entirely  does  away  with  that  rule  of  inter- 
pretation. Therefore  the  naming  of  limitations  on  cer- 
tain powers  has  the  effect  of  emphasizing  and  strength- 
ening the  prohibition  against  the  exercise  of  the  named 
powers,  without  affecting  the  reserved  powers. 

But  the  amendments  to  the  constitution  do  not  stop  at 
the  ninth  article  of  amendment,  but  go  further,  and  by 
the  tenth  article  of  amendment  settle  all  doubts  about 
the  reserved  powers,  which  is  in  the  following  language  : 

Article  X. 

"  The  powers  not  delegated  to  the  United  States  by 
the  constitution,  nor  prohibited  by  it  to  the  states,  are 
reserved  to  the  states  respectively,  or  to  the  people." 

I  have  referred  to  this  article  frequently  in  this  re- 
view, and  deem  it  useless  to  say  more  about  it  in  this 
connection^  than  that  it  is  utterly  impossible  to  give  to  it 


326  CONSTITUTION   OF  THE   UNITED   STATES. 

any  force  at  all,  unless  it  senses  to  require  a  strict  con- 
struction of  the  constitution ;  for  as  heretofore  con- 
tended, the  constitution  speaks  only  by  the  language 
thereof  ;  therefore  it  is  impossible  to  delegate  powers  by 
it  to  the  United  States  otherwise  than  by  express  lan- 
guage, particularly  as  all  powers  not  delegated  to  the 
United  States  by  the  constitution,  nor  prohibited  by  it  to 
the  states,  are  expressly  reserved  to  the  states  respect- 
ively, or  to  the  people. 

How  can  the  powers  delegated  to  the  United  States  by 
the  constitution  be  distinguished  from  those  that  are  ex- 
pressly reserved  to  the  states  respectively,  or  to  the  peo- 
ple, except  by  the  letter  of  the  constitution? 

The  supreme  court,  in  the  case  of  McCuUoch  v.  State 
of  Maryland,  and  in  the  case  of  Gibbons  v.  Ogden,  here- 
tofore quoted  and  referred  to,  in  the  consideration  of  the 
organization  of  the  judiciary  department,  admitted  that 
if  there  was  any  thing  in  the  constitution  of  1787  like 
the  provision  in  the  constitution  of  1777,  requiring  the 
constitution  of  1787  to  be  strictlj^  construed,  the  inter- 
pretation given  to  that  instrument  in  those  two  cases 
would  not  have  been  authorized  by  the  constitution ; 
hence  that  court  could  not  have  noticed  this  article  of 
the  constitution. 

Articl,e  XI. 

"The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  state,  or  by  citizens  or  subjects  of 
any  foreign  state." 

At  a  very  early  period  in  the  histor}^  of  the  United 
States,  the  supreme  court,  by  a  divided  court,  held 
the  United  States  to  be  a  sovereign  nation,  and  on 
that  theory  took  jurisdiction  of  suits  brought  against 
several   of   the   states  by   individual    citizens  of    other 


AMENDMENTS    TO    THE    CONSTITUTION.  327 

States,  or  by  subjects  or  citizens  of  foreign  states.  The 
argument  of  some  of  the  judges  composing  the  majority 
of  that  court,  in  the  case  of  Chisholm  v.  The  State  of 
Georgia,  would  lead  to  depriving  the  states  and  the 
people  of  all  sovereign  authority,  and  ultimately  vesting 
the  whole  of  that  authority  in  the  United  States.  To 
avoid  that  tendency,  and  to  avoid  the  annoyance  to  the 
states,  said  eleventh  article  of  amendment  to  the  consti- 
tution was  proposed  by  the  third  congress,  on  the  5th  of 
September,  1794,  and  was  declared  by  a  message  from 
the  president  to  the  congress,  dated  8th  of  January, 
1798,  to  have  been  ratified  by  the  legislatures  of  three- 
fourths  of  the  states. 

This  article  of  amendment  takes  away  from  the  fed- 
eral courts  jurisdiction  of  all  cases  wherein  any  indi- 
vidual may  be  the  plaintiff  against  the  state.  The  juris- 
diction of  the  federal  courts  never  extended  to  contro- 
versies between  citizens  of  the  same  state,  or  the  citi- 
zens thereof  and  their  own  state,  so  that  should  the 
supreme  court,  by  its  interpretation  of  the  constitu- 
tion, reduce  the  states  to  artificial  persons,  as  other  cor- 
porations are  held,  still  the  federal  courts  could  not  take 
jurisdiction  of  controversies  to  which  a  state  may  be  a 
party,  unless  the  controversy  shall  be  between  two  or 
more  states  ;  because  this  eleventh  article  of  amendment 
expressly  takes  away  from  the  federal  court  jurisdiction 
of  suits  against  the  states  by  citizens  of  another  state, 
or  citizens  or  subjects  of  any  foreign  state  ;  and  the  con- 
stitutional provision,  in  constituting  the  judiciary  depart- 
ment, docs  7iot  vest  the  federal  judiciar>'  with  jurisdiction 
of  controversies  between  citizens  of  the  same  state,  nor 
between  any  state  and  its  own  citizens. 

To  have  vested  the  federal  judiciary  with  jurisdiction 
of  controversies  between  any  state  and  its  own  citizens 
would   have  completely  destroyed  the  federal  principle 


528  CONSTITUTION    OF    THE    UNITED    STATES. 

and  the  power  of  the  states  to  maintain  their  home 
government. 

In  the  formation  of  the  constitution,  no  new  powers 
were  delegated  to  the  states,  though  the  states  were,  by 
that  instrument,  limited  in  the  exercise  of  powers  that 
they  were  vested  with  under  the  articles  of  confederation, 
which  was  necessary,  in  order  to  enlarge  the  powers  of 
the  United  States  sufficiently  to  make  them  adequate  to 
the  exigencies  of  government. 

It  was  not  only  necessary  to  take  certain  powers  from 
the  states  to  be  given  to  the  federal  union,  but  certain 
other  powers  were  necessarily  taken  from  the  states  which 
were  not  given  to  the  union  but  reserved  to  the  people. 
Section  ten  of  article  I  was  thought  sufl&cient  to  define 
all  of  this  class  of  powers ;  but  by  a  refinement  of  legal 
reasoning,  it  was  feared  that  the  enumeration  of  certain 
rights,  whether  granted  to  the  United  States,  or  those  that 
were  prohibited  to  the  states,  or  those  reserved  to  the 
states  or  to  the  people,  might  be  interpreted  to  grant 
greater  powers  to  the  union  than  was  intended.  To 
settle  that  danger  the  ninth  article  of  amendment  pro- 
vides that  the  enumeration  of  certain  rights  shall  not  be 
construed  to  disparage  other  rights  reserved  to  the  peo- 
ple ;  and  the  tenth  article  of  amendment  provides  that  all 
powers  not  delegated  to  the  United  States  nor  prohibited 
to  the  states  by  the  constitution,  are  reserved  to  the 
states  respectively  or  to  the  people,  which  ought  to  allay 
every  doubt  on  the  subject,  and  require  every  grant  of 
power  to  the  United  States  to  be  strictly  construed,  as 
hereinbefore  contended. 

The  state  governments  had  absolute  control  over  their 
own  citizens  while  .they  were  acting  as  subjects  thereof, 
though,  while  acting  as  sovereigns,  they  had  absolute 
control  over  the  governm^ents  or  corporations  thereof; 
and  neither  of  these  rights  was  granted  by  the  constitu- 


AMENDMENTS    TO    THE    CONSTITUTION.  329 

tion  of  the  United  States,  nor  prohibited  by  that  instru- 
ment to  the  states  ;  consequently,  they  were  expressly 
reserved  to  the  states  respectively  or  to  the  people. 

The  governments  of  the  states  are  but  corporations  of 
limited  powers  defined  by  the  constitution  thereof,  and 
the  Supreme  Court  of  the  United  States  in  the  case  of 
McCulloch  V.  The  State  of  Maryland,  before  quoted, 
held  the  United  States  are  sovereign  in  respect  to  the 
powers  granted  to  them,  and  that  the  state  governments 
are  sovereign  in  respect  to  the  powers  reserved  to  them  ; 
yet  that  would  not  authorize  the  United  States  to  take 
jurisdiction  of  engagements  entered  into  by  the  states  in 
the  exercise  of  their  sovereign  authority  under  their  con- 
stitution ;  unless  it  was  possible  for  one  sovereign  to  be 
under  the  control  of  another  sovereign,  which  is  utterly 
impossible.  For  if  sovereignity  is  supreme  and  beyond 
control,  except  to  the  extent  it  may  voluntarily  obligate 
itself,  no  sovereign  authority  can  be  made  subject  to  the 
control  of  another  sovereignty,  without  destroying  its 
sovereignty.  This  ought  to  have  guided  the  supreme 
court,  without  the  eleventh  article  of  amendment  to  the 
constitution,  but  that  court  seems  not  even  to  have  sub- 
mitted to  the  limitations  imposed  on  it  by  this  eleventh 
article  of  amendment,  for,  beginning  with  the  Dartmouth 
College  case,  it  has  invariably  adhered  to  the  theory  that 
private  corporations  granted  by  a  state  constitut-es  con- 
tracts, and  that  the  states  can  not  impair  the  obligation  of 
those  contracts. 

It  must  be  conceded  that  no  state  can  impair  the  obli- 
gations of  contracts  made  under  any  law  of  such  state,  be- 
tween citizens  of  any  state  of  the  union,  or  between  citizens 
of  this  country  and  citizens  or  subjects  of  foreign  nations. 
But  any  state  may  not  only  impair  the  obligation  of  its 
own  contracts,  but  it  may  repudiate  any  contract  it  may 
make,  and  there  is  no  power  in  the  United  States  to  pre- 


330  COXSTITUTION   OF   THK   UNITED   STATES. 

vent  it,  but,  as  before  shown,  the  states  have  gotten  rid 
of  a  large  part  of  the  evil  effects  of  that  ruling  of  the 
supreme  court,  by  reserving  the  right  by  a  general  statute, 
or  a  provision  of  the  constitution  thereof,  requiring  all 
charters  to  private  corporations  to  be  subject  to  alteration, 
amendment  or  repeal,  at  the  option  of  the  state.  So  that 
the  purposes  of  this  eleventh  article  of  amendment  to  the 
constitution  is  now  practically  executed,  though  not  rec- 
ognized to  its  full  extent  as  a  part  of  the  constitution. 

The  first  ten  articles  of  amendment  to  the  constitution 
were  required  by  the  states,  and  would  have  been  at- 
tached to  the  several  ordinances  adopting  the  constitu- 
tion as  conditions  precedent,  but  for  the  fact  that  such 
conditions  would  have  been  worded  in  different  language 
by  each  state,  and  would  have  been  an  impediment  to  put- 
ting the  constitution  into  operation  ;  therefore,  the  friends 
of  the  constitution  assured  those  who  opposed  the  adop- 
tion of  it  as  it  was,  that  the  required  changes  by  the  states 
should  be  proposed  by  the  first  congress,  and  submitted 
to  the  state  legislatures  for  ratification.  The  congress  in 
good  faith  proposed  twelve  amendments,  but  the  state 
legislatures  failing  to  ratify  the  first  two,  the  last  ten  only 
became  part  of  the  constitution. 

As  before  stated,  the  eleventh  amendment  was  prompted 
by  suits  against  the  states  by  citizens  of  other  states,  and 
aliens. 

ARTICI.E    XII. 

The  twelfth  article  of  amendment,  relating  to  the  elec- 
tion of  president  and  vice-president,  has  been  given  and 
fully  discussed  in  the  chapter  on  the  executive  depart- 
ment. 

Article  XIII. 

Sec.  I.  "Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall 


AMENDMENTS   TO    THE    CONSTITUTION.  33 1 

have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction." 

Sec.  2.  "Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation." 

This  article  was  proposed  by  the  thirty-eighth  con- 
gress on  the  ist  of  February,  1865,  and  was  declared,  in 
a  proclamation  of  the  secretary  of  state,  dated  the  i8th 
of  December,  1865,  to  have  been  ratified  by  the  legis- 
latures of  twenty-seven  of  the  thirty-six  states,  viz.: 
Illinois,  Rhode  Island,  Michigan,  Maryland,  New  York, 
West  Virginia,  Maine,  Kansas,  Massachusetts,  Pennsyl- 
vania, Virginia,  Ohio,  Missouri,  Nevada,  Indiana,  Louis- 
iana, Minnesota,  Wisconsin,  Vermont,  Tennessee,  Arkan- 
sas, Connecticut,  New  Hampshire,  South  Carolina,  Ala- 
bama, North  Carolina  and  Georgia. 

The  evident  object  of  this  article  of  amendment  to  the 
constitution  was  to  abolish  the  institution  of  slavery 
throughout  the  United  States.  As  all  of  the  states 
were  responsible  for  that  institution,  each  state  being 
bound  to  deliver  up  fugitive  slaves,  on  claim,  to  their 
owners  as  shown  in  the  third  paragraph  of  .section  two  of 
article  four  of  the  constitution  ;  and  as  property  in  slaves 
was  an  artificial  right,  not  a  natural  right,  there  ought  to 
be  some  way  for  the  states  to  withdraw  their  support 
from  that  institution.  But  there  was  no  way  for  them  to 
do  so  provided  in  the  constitution,  consequently  it  could 
not  be  done  except  by  the  exercise  of  the  sovereign  au- 
thority of  the  people  of  the  several  states,  and  the  only 
organ  through  which  the  people  can  express  their  sov- 
ereign will  is  a  sovereign  convention.  The  federal  con- 
vention alone  could  propose  such  a  radical  change  in 
the  government,  and  the  state  conventions  are  the  only 
organs  through  which  the  sovereign  will  of  the  people 
can  be  expressed  in  ratification  of  such  a  change.  It 
is,  however,  true  that  the  congress  may  propose  amend- 


332  CONSTITUTION   OF   THE   UNITED   STATES. 

ments  which,  when  ratified  by  the  legislatures  of  three- 
fourths  of  the  states,  shall  become  parts  of  the  con- 
stitution. But  when  we  reflect  that  the  United  States 
consists  of  a  union  of  the  sovereign  people  of  the  sev- 
eral states,  and  also  of  a  union  of  the  political  organi- 
zations of  the  several  states,  and  that  both  the  United 
States,  and  the  several  states,  are  but  agents  of  the  peo- 
ple of  the  several  states,  and  neither  of  said  agents  has 
any  powers  except  those  that  were  delegated  to  them  re- 
spectively by  the  people,  their  powers  to  amend  the  con- 
stitution must  necessarily  be  limited  to  changes  within 
the  scope  of  the  powers  granted  to  them  ;  therefore,  they 
can  not  change  the  character  of  the  government,  nor  en- 
large its  powers,  nor  relieve  it  of  any  of  the  duties  im- 
posed on  it  by  the  sovereign  authority.  However,  as  all 
of  the  former  slave  states  have  changed  their  respective 
constitutions,  and  abolished  the  institution  of  slavery 
no  difficulty  can  ever  arise  on  this  point  ;  still  it  is  neces- 
sary to  know  how  far  the  congress  and  the  state  legisla- 
tures can  go  in  amending  the  constitution  ;  whether  they 
can  abolish  any  species  of  property  in  a  state  desiring  to 
maintain  it ;  and  if  they  can  abolish  property  in  birds  or 
dogs,  or  in  animals  ferce  nature  that  have  been  made 
property  of  by  the  state  ;  and  whether,  if  they  can  abolish 
the  rights  of  property  in  such  animals,  can  it  be  done 
without  compensation  being  paid  to  the  owners  for  them, 
as  was  done  in  the  abolition  of  slavery  ? 

The  right  of  property  in  slaves  was  by  tne  constitution 
required  to  be  recognized  by  every  state  in  the  union,  and 
it  is  provided  that  private  property  shall  not  be  taken  for 
public  use  without  just  compensation  in  the  fifth  article 
of  amendments  ;  but  this  thirteenth  article  of  amend- 
ment was  proposed  and  ratified  at  a  time  when  the  peo- 
ple adhering  to  the  union  were  excited  and  desired  to  pun- 
ish those  who  had  taken  part  in  the  rebellion,  and  but 


AMENDMENTS   TO   THE    CONSTITUTION.  333 

little  attention  was  paid  to  the  constitution,  or  the  rights 
of  the  states  or  the  people  thereof,  and  no  provision 
was  made  to  compensate  the  owners  of  the  slave  prop- 
erty. This  breach  of  the  constitution  has  also  been  ad- 
justed by  the  states,  in  amendments  to  their  respective 
constitutions  abolishing  slavery  therein. 

Article  XIV. 

Sec.  I.  "All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citi- 
zens of  the  United  States  and  of  the  state  wherein  they 
reside.  No  state  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States  ;  nor  shall  any  state  deprive  any  per- 
son of  life,  liberty,  or  property,  without  due  process  of 
law  ;  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws. ' ' 

Sec.  2.  "Representatives  shall  be  apportioned  among 
the  several  states  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  state,  ex- 
cluding Indians  not  taxed.  But  when  the  right  to  vote 
at  any  election  for  the  choice  of  electors  for  president 
and  vice-president  of  the  United  States,  representatives 
in  congress,  the  executive  and  judicial  oflScers  of  a  state, 
or  the  members  of  the  legislature  thereof,  is  denied  to 
any  of  the  male  inhabitants  of  such  state,  being  twenty- 
one  years  of  age,  and  citizens  of  the  United  States,  or  in 
any  way  abridge,  except  for  participation  in  rebellion,  or 
other  crime,  the  basis  of  representation  therein  shall  be 
reduced  in  the  proportion  which  the  number  of  such  male 
citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  state. 

Sec.  3.  "No  person  shall  be  a  senator  or  representa- 
tive in  congress,  or  elector  of  president  and  vice-pres- 
ident,  or  hold  any  office,    civil  or  military,    under  the 


334  CONSTITUTION   OF   THE   UNITED   STATES. 

United  States,  or  under  any  state,  vv'ho,  having  previously- 
taken  an  oath,  as  a  member  of  congress,  or  as  an  officer 
of  the  United  States,  or  as  a  member  of  any  state  legis- 
lature, or  as  an  executive  or  judicial  officer  of  any  state, 
to  support  the  constitution  of  the  United  States,  shall 
have  engaged  in  insurrection  or  rebellion  against  the 
same,  or  given  aid  or  comfort  to  the  enemies  thereof. 
But  congress  may  by  a  vote  of  two-thirds  of  each  house 
remove  such  disability." 

Sec.  4.  "The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for 
payment  of  pensions  and  bounties  for  services  in  sup- 
pressing insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States  nor  any  state  shall  assume 
or  pay  any  debt  or  obligation  in  aid  of  insurrection  or  re- 
bellion against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave ;  but  all  such  debts, 
obligations  and  claims  shall  be  held  illegal  and  void. ' ' 

Sec.  5.  "The  congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article." 

This  amendment  was  proposed  to  the  legislatures  of 
the  several  states  by  the  thirty-ninth  congress  on  the  1 6th 
of  June,  1866.  On  the  21st  of  July,  1868,  congress 
adopted  and  transmitted  to  the  department  of  state  a 
concurrent  resolution,  declaring  that  "  the  legislatures  of 
the  states  of  Connecticut,  Tennessee,  New  Jersey,  Oregon, 
Vermont,  New  York,  Ohio,  Illinois,  West  Virginia,  Kan- 
sas, Maine,  Nevada,  Missouri,  Indiana,  Minnesota,  New 
Hampshire,  Massachusetts,  Nebraska,  Iowa,  Arkansas, 
Florida,  North  Carolina,  Alabama,  South  Carolina,  and 
Louisiana,  being  three-fourths  and  more  of  the  several 
states  of  the  union,  have  ratified  the  fourteenth  article  of 
amendment  to  the  constitution  of  the  United  States, 
duly  proposed  by  two-thirds  of  each  house  of  the  thirty- 
ninth  congress ;  therefore, 


AMENDMENTS   TO    THE    CONSTITUTION.  335 

' '  Resolved^  That  said  fourteenth  article  is  hereby  de- 
clared to  be  a  part  of  the  constitution  of  the  United 
States,  and  it  shall  be  duly  promulgated  as  such  by  the 
secretary  of  state." 

The  secretary  of  state  accordingly  issued  a  proclama- 
tion, dated  the  28th  day  of  July,  1868,  declaring  that 
the  proposed  fourteenth  amendment  had  been  ratified,  in 
manner  hereafter  mentioned,  by  the  legislatures  of  thirty 
of    the  thirty-six  states,  viz.:  Connecticut,   June   30th, 

1866  ;  New  Hampshire,  July  7th,  1866  ;  Tennessee,  July 
19th,  1866;  New  Jersey,  September  nth,  1866  (and  the 
legislature  of  the  same  state  passed  a  resolution  in  April, 
1868,  to  withdraw  its  consent  to  it)  ;  Oregon  ratified  it 
September  19th,  1866;  Vermont,  November  9th,  1S66; 
Georgia  rejected  it  November  13th,  1866,  but  ratified  it 
July  2ist,  1 868  ;  South  Carolina  rejected  it  December 
20th,  1866,  but  ratified  it  July  9th,  1868;  North  Caro- 
lina rejected  it  December  4th,  1866,  but  ratified  it  July 
4th,  1868  ;  New  York  ratified  it  January  loth,  1867  ;  Ohio 
ratified  it  January  nth,  1867  (but  the  legislature  thereof 
passed  a  resolution  in  Januar>%  1868,  to  withdraw  its  con- 
sent to  it)  ;  Illinois  ratified  it  January  15th,  1867  ;  West 
Virginia  ratified  it  January  i6th,  1867  ;  Kansas,  January 
i8th,  1867;  Maine,  January  19th,  1867;  Nevada,  Janu- 
ary 22d,  1867,  Missouri,  January  26th,  1867;  Indiana, 
January  29th,  1867  ;  Minnesota,  February  ist,  1S67  ; 
Rhode  Island,  February  7th,  1867  ;  Wisconsin,  February 
13th,  1867;  Pennsylvania,  February  13th,  1S67  ;  Michi- 
gan, February   15th,  1867;  Massachusetts,  March  20th, 

1867  ;  Nebraska,  June  15th,  1867  ;  Iowa,  April  3d,  1S68  ; 
Arkansas,  April  6th,  1S68 ;  Florida,  June  9th,  1868; 
Louisiana,  July  9th,  1868;  Alabama,  July  13th,  1868; 
Georgia  again  ratified  the  amendment  February  2d,  1870  ; 
Texas  rejected  it  November  ist,  1866,  but  ratified  it  Feb- 
ruary  i8th,   1870;    Virginia  rejected  it  February    19th, 


336  CONSTITUTION   OF   THE   UNITED   STATES. 

1867,  but  ratified  it  October  8tli,  1869.  It  was  rejected 
by  Kentucky,  January  loth,  1867  ;  by  Delaware,  Febru- 
ary 8th,  1867,  and  by  Maryland,  March  23d,  1867. 

This  amendment  requires  the  fifteenth  amendment  to 
complete  it,  which  more  definitely  points  out  the  class  of 
persons  the  fourteenth  amendment  was  intended  to 
affect,  which  is  as  follows  : 

ArticIvE  XV. 

Sec.  I.  "The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States 
or  by  any  state  on  account  of  race,  color,  or  previous  con- 
dition of  servitude." 

See.  2.  "The  congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. ' ' 

The  fourteenth  amendment  was  not  only  voted  for  by 
the  native  born  of  African  descent  before  its  adoption, 
and  before  they  were  made  capable  of  being  voters,  but 
at  a  time  a  large  portion  of  the  valid  white  citizens  of 
the  seceding  states  were  denied  citizenship,  and  their 
right  to  vote  by  an  act  of  congress ;  and  even  by 
that  arbitrary  method  of  reconstructing  the  seceding 
states,  it  is  at  least  doubtful  whether  a  sufficient  number 
of  the  states  ratified  it  to  make  it  a  part  of  the  constitu- 
tion, for  it  required  a  resolution  of  the  congress,  declar- 
ing it  had  been  ratified  by  three-fourths  of  the  states, 
and  an  order  by  that  department,  to  induce  the  secretary 
of  state  to  promulgate  it  as  a  part  of  the  constitution.* 

The  fifteenth  amendment,  however,  was  promulgated 
by  the  secretary  of  state  without  any  command  from  the 
congress. 

As  shown  in  discussing  the  authority  to  admit  new 
states,   every  nation  must  have  a  people   associated   to- 

*  Revised  Statutes  of  United  States. 


AMENDMENTS   TO   THE    CONSTITUTION.  337 

gether  as  one  people,  who  may  be  known  and  recognized 
as  but  one  political  body  or  people,  capable  of  appro- 
priating a  designated  part  of  the  globe  to  their  exclusive 
use  ;  for  if  there  is  any  doubt  about  the  character  or  the 
identity  of  the  people  who  lay  claim  to  that  designated 
part  of  the  globe,  their  claim  will  not  be  regarded  by 
other  nations,  races,  or  tribes  of  people. 

The  dual  system  of  governments  for  the  United  States 
was  ordained  and  established  by  white  people  for  them- 
selves alone,  and  negroes,  mulattoes  and  Indians  were 
excluded  from  the  body  politic  or  national  family  of  peo- 
ple, who  ordained  and  established  the  nation  of  the 
United  States. 

A  national  family  being  the  foundation  upon  which 
every  nation  must  rest,  for  whenever  the  political  asso- 
ciation of  the  people  of  a  nation — or,  as  it  is  expressed 
by  the  supreme  court  in  the  Dred  Scott  case,  natioyial 
family — shall  be  destroyed,  their  country,  territory,  or 
other  possessions  will  necessarily  revert  to  the  God  of 
nature,  and  again  become  free  to  the  occupancy  of  any 
other  tribe,  race,  or  nation  of  people. 

As  shown  in  discussing  authority  to  admit  new  states, 
no  people  can  be  free  who  commit  to  their  govern- 
ment authority  to  change  the  character  of  people  who 
may  have  been  ordained  to  constitute  this  political  asso- 
ciation or  national  family,  either  by  extending  to  inferior 
tribes  within  the  country  authority  to  participate  in  the 
management  of  the  national  affairs,  or  by  expanding  the 
boundary  thereof  so  as  to  take  in  an  inferior  tribe  or 
race  of  people  to  participate  therein. 

And,  as  shown  in  the  first  chapter  of  this  review,  the 
only  organ  for  gi"vnng  expression  to  the  sovereign  will  of 
the  people  is  through  sovereign  conventions. 

Therefore,  any  change  in  the  character  of  the  people 
who  conipo.se  the  political  association  of  this  nation,  or 


338  CONSTITUTION   OF   THK  UNITED   STATES. 

the  national  family,  requires  the  assent  of  the  sovereign 
will ;  and,  as  shown  in  discussing  the  fifth  article  of  the 
constitution,  such  changes  must  be  made  by  a  federal 
convention  and  ratified  by  conventions  in  three-fourths 
of  the  states.  Hence  the  native-bom  of  African  descent 
could  not  have  been  added  to  the  family  of  sovereign 
citizens  of  the  United  States  by  any  amendment  proposed 
by  the  congress  and  ratified  by  the  legislature  of  any 
number  of  the  states,  even  if  ratified  by  the  legislatures 
of  all  of  the  states  ;  but,  for  the  purpose  of  ascertaining 
the  intent  and  effect  of  the  fourteenth  and  fifteenth  amend- 
ments to  the  constitution,  the  manner  of  proposing  them, 
and  the  way  it  is  claimed  they  were  ratified  is  waived 
without  conceding  authority  in  the  congress  and  state 
legislatures  to  make  such  amendments. 

The  first  clause  of  the  first  section  of  the  fourteenth 
article  of  amendment  simply  declares  as  a  fact,  that  "All 
persons  born  or  naturalized  in  the  "United  States  and  sub- 
ject to  the  jurisdiction  thereof  are  citizens  of  the  United 
States  and  of  the  state  wherein  they  reside. ' ' 

As  shown  by  the  fifteenth  amendment,  this  was  in- 
tended to  make  the  native  born  of  African  descent  be- 
lieve they  were  to  become  citizens  thenceforth.  But  the 
second  section  of  this  fourteenth  amendment  concedes  to 
the  several  states  the  right  not  only  to  deny  the  truth  of 
the  declaration  in  the  first  clause  of  the  first  section, 
but  concedes  to  the  states  authority  and  power  to  dis- 
regard it,  for  the  second  section  offers  the  states  an  in- 
ducement to  acknowledge  so  much  to  be  true  as  will 
permit  the  native  born  of  African  descent  to  vote  in 
elections  for  the  choice  of  electors  for  president,  representa- 
tives in  congress;  the  executive  ayid  judicial  officers  of  the 
state  and  members  of  the  legislature  thereof,  and  that  their 
right  to  vote  in  either  of  said  elections  shall  not  be 
abridged  except   for  participation  in  rebellion  or  other 


AMENDMENTS    TO    THE    CONSTITUTION.  339 

crime.     It  is  a  settled  rule  of  interpretation  that  the  nam- 
ing of  particular  rights  excludes  all  others  from  the  grant. 

Remembering  that  sovereign  conventions  were  ordained 
as  the  only  organs  through  which  the  people  can  express 
their  sovereign  will,  and  that  the  states  were  not  required 
by  the  proposition  in  this  second  section  to  extend  the  sov- 
ereign right  to  native  born  of  African  descent  to  vote  for 
delegates  to  sovereign  or  constitutional  conventions,  or  to 
hold  office  in  the  state,  shows  that  the  draftsman  of  this 
fourteenth  amendment  did  not  intend  to  make  the  African 
inhabitants  sovereign  citizens,  for,  as  sovereign  citizens, 
no  laws  could  be  made  prohibiting  them  from  intermarr>'- 
ing  w4th  the  white  people,  or  from  attending  the  same 
public  schools.  And  the  danger  of  daughters  of  the  white 
people  being  entrapped  into  marriage  with  the  black  bucks, 
while  attending  school  together,  would  have  defeated  its 
ratification  by  the  states  ;  which  probably  presented  itself 
to  the  draftsman  of  the  amendment. 

But,  whatever  may  have  influenced  the  draftsman,  or 
the  congress  that  proposed  it,  or  the  states  that  were 
counted  as  ratifying  it,  this  amendment,  by  itself,  and 
with  the  aid  of  the  fifteenth,  fails  to  make  the  native 
bom  of  African  descent  sovereign  citizens  of  the  states 
or  of  the  United  States  ;  and  the  congress  itself  recog- 
nizes this  fact. 

For,  being  authorized  to  enforce  said  amendments  by 
legislation,  the  congress,  in  what  was  knowm  as  the  civil 
rights  bill,  authorized  colored  inhabitants  to  carry  their 
suits  to  the  United  States  courts,  whether  they  were 
plaintiffs  or  defendants,  on  a  plea  that  they  were  denied 
justice  in  the  state  courts  on  account  of  race,  color,  etc. 

This  act  of  congress  appears  to  be  based  on  the  idea 
that  native  born  of  African  descent  became  citizens  of 
the  United  States  by  said  amendment,  and  by  virtue 
of  being  citizens  of  the  United  States  they  become  citi- 


340  CONSTITUTION   OF   THE   UNITED   STATES. 

zens  of  the  state  wherein  they  inhabit  ;  there  is  nothing 
in  this  act  requiring  equal  protection  under  the  laws  of 
the  state  wherein  they  reside,  but  the  states  are  required 
to  extend  to  that  class  of  persons  equal  protection  under 
the  laws,  and,  as  they  are  authorized  to  take  their  cases 
into  federal  courts,  the  laws  referred  to  can  not  apply  to 
state  laws,  of  which  the  courts  of  the  United  States  have 
no  jurisdiction.  Therefore  that  act  attempts  to  vest  a 
class  of  persons  with  privileges  that  may  not  be  enjoyed 
by  full  citizens  of  some  of  the  states  wherein  they  reside  ; 
and  in  many  other  ways  the  congress  treated  them  as 
being  peculiarly  under  the  protection  of  the  United  States, 
and  characterized  them  as  citizens  of  the  United  States 
and,  therefore,  citizens  of  the  state  wherein  they  reside, 
though  the  United  States  being  merely  a  name  to  designate 
the  states  united,  and  without  power  to  protect  or  govern 
any  people  except  as  the  agent  or  trustee  of  the  states, 
there  can  not  be  any  citizens  thereof,  except  the  citizens 
of  the  several  states  in  the  union. 

If  the  United  States  could  have  citizens  independent 
of  those  of  the  several  states,  the  United  States  could 
not  in  good  faith  represent  the  states  united  ;  but  to  the 
extent  of  its  own  citizens  it  must  have  an  existence  in- 
dependent of  the  states,  and  to  that  extent  its  interest 
would  conflict  with  that  of  the  states  ;  and  to  that  extent 
the  United  States  would  become  a  rival  of  the  states. 

The  first  section  provides  that,  "no  state  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States  ;  nor  shall 
any  state  deprive  any  person  of  life,  liberty  or  property, 
without  due  process  of  law  ;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws ;" 
which  applies  only  to  citizens  of  the  United  States  while 
under  the  jurisdiction  of  the  state.     Furthermore,  the 


AMENDMENTS    TO    THE    CONSTITUTION.  34 1 

first  section  attempts  to  transfer  all  citizenship  from  the 
states  to  the  United  States. 

The  fifth  section  provides  that,  "the  congress  shall 
have  power  to  enforce,  by  appropriate  legislation,  the 
provisions  of  this  article." 

If  these  provisions  had  been  upheld  by  the  judiciary, 
they  would  effectually  have  transferred  the  whole  police 
jurisdiction  of  the  states  to  the  congress  of  the  United 
States,  and  have  converted  the  states  into  mere  provinces, 
and  the  United  States  into  an  unlimited  empire,  but, 
fortunately  for  the  people  of  the  United  States,  at  the 
time  these  amendments  first  came  before  the  supreme 
court  for  interpretation,  there  were  able  and  patriotic 
judges  on  the  supreme  court  bench  who  eliminated  the 
revolutionary  features  by  interpretation.* 

The  justice  who  wrote  the  opinion  of  the  court,  in  the 
course  of  his  argument,  intimated  that  the  object  of 
these  amendments  might  have  been  to  get  rid  of  the 
effects  of  the  decision  of  the  supreme  court  in  the 
Dred  Scott  case,  but  that  question  was  not  involved 
in  those  cases,  and  it  was  not  duly  considered  by  the 
court,  and  should  be  deemed  obiter  dictum,  and  no  au- 
thority ;  and  no  regard  has  been  showm  it  by  the  judiciary 
or  any  department  of  the  United  States. 

Free  societies  of  people  may  unite  themselves  together 
by  voluntary  engagement  or  compact,  and  each  society 
retain  its  freedom  and  sovereignty  as  a  perfect  state, 
provided  they  enter  into  that  union  on  perfectly  equal 
terms. 

And  they  may  institute  a  common  agent  to  represent 
the  union  without  impairing  the  freedom  or  sovereignty 
of  these  societies  within  the  union,  provided  equalit}'  be 
preserved  in  the  compact  of  the  union,  and  provided  fur- 

*  Slaughter's  House  Cases,  16  Wall.  36. 


342  CONSTITUTION   OF   THE   UNITED   STATES. 

ther,  the  respective  societies  consist  of  one  race  of  people, 
or  at  least  of  kindred  races  of  people.  For,  if  some  of 
the  members  or  societies  of  such  a  union  reject  any  race 
or  tribe  of  people  from  their  societies  or  political  organiza- 
tions, and  other  members  permit  those  races  or  tribes  into 
their  society  or  political  organizations,  the  several  mem- 
bers of  such  a  union  could  not  retain  equal  freedom  and 
sovereignty  therein. 

If  the  native  born  of  African  descent  were  made  sover- 
eign citizens  by  these  amendments  to  the  constitution, 
they  must  have  been  made  citizens  of  the  states  wherein 
they  reside,  and  therefore  citizens  of  the  United  States, 
and  they  not  only  have  the  right  to  travel  in  the  same 
railroad  coaches,  but  to  send  their  children  to  the  same 
public  schools  the  children  of  white  people  attend,  for 
the  black  children  may  learn  much  from  associating  with 
the  white  children ;  and  they  have  the  right  to  patronize 
the  same  hotels,  churches,  theaters  and  to  intermarry 
with  the  whites,  and  they  can  not  be  denied  either  of 
these,  or  any  other  equal  right,  by  either  state  or  federal 
laws.  If  they  are  sovereign  citizens,  it  needs  neither  ar- 
gument nor  the  citation  of  authorities  to  show  that  they 
can  not  be  discriminated  against  in  any  way  whatever, 
for  sovereignty  is  supreme  and  can  not  be  limited  other- 
wise than  by  voluntary'  agreement,  which  may  be  broken 
at  will  by  the  sovereign,  and  no  act  of  the  law-making 
power  can  become  a  law  that  allows  greater  privileges  to 
one  sovereign  than  to  another. 

That  the  children  of  that  race  of  people  are  excluded 
from  the  schools  pro\nded  by  the  public  for  white  chil- 
dren, and  are  prohibited  from  intermarrying  with  the 
whites,  or  occupying  the  same  seats  in  theaters,  or 
riding  in  the  same  railroad  coaches  with  the  white  people, 
and  in  many  other  ways  discriminated  against  by  the 
laws  of  the  states,  which  are  recognized  as  valid  by  every 


AMENDMENTS   TO    THE    CONSTITUTION.  343 

department  of  the  United  States,  shows  that  the  African 
inhabitants  are  not  sovereign  citizens  of  the  states  or  of 
the  United  States ;  for,  if  they  were  sovereign  citizens, 
every  discriminating  act  of  the  legislature  of  any  state 
would  be  unconstitutional  and  void. 

But  they  are  inhabitants  of  the  United  States  and 
of  the  state  wherein  they  reside,  and  as  mere  inhab- 
itants they  are  entitled  to  protection  under  the  laws 
of  the  United  States  and  of  the  state  wherein  they 
reside.  As  the  native  bom  of  African  descent  owe  no 
allegiance  to  any  other  nation,  prince  or  potentate, 
and  have  alw^ays  resided  in  the  United  States,  it  is 
difficult  to  define  the  exact  relation  they  bear  to  the 
United  States  and  the  state  wherein  they  reside.  They 
are  surely  entitled  to  the  protection  of  both,  and  may  be 
said  to  be  wards  of  both.  However,  they  may  be  wards 
of  the  United  States  without  being  wards  of  any  state, 
as  in  case  of  their  going  to  a  territory  of  the  United 
States,  they  not  being  full  citizens  of  the  state  they  leave 
to  go  to  such  territory,  by  leaving,  all  obligations  be- 
tween them  and  the  state  they  migrate  from  would  be 
severed  ;  in  that  case,  the  African  inhabitants  of  the  ter- 
ritory would  still  remain  wards  of  the  United  States. 
Citizens  of  the  states  who  migrate  to  the  territories  of 
the  United  States  remain  citizens  of  the  states  they  mi- 
grate from  until  the  territory  shall  be  formed  into  a 
state  ;  for  the  territories  belonging  to  all  of  the  states  as 
equal  owners,  though  held  in  trust  in  the  name  of  the 
United  States.  No  one  can  become  a  citizen  of  any  of  the 
territories  of  the  United  States,  however  long  they  may 
reside  therein,  as  citizenship  must  always  be  on  land  and 
can  not  float  in  the  air  or  be  held  in  abeyance ;  hence, 
it  remains  where  it  last  took  root. 

However,  persons  leaving  a  foreign  nation  to  settle  in 
a  territor>',  who  are  entitled  to  be  naturalized,  must  ac- 


344  CONSTITUTION   OF   THE   UNITED   STATES. 

quire  some  right  under  the  laws  of  the  United  States, 
and  must  be  entitled  to  protection  of  the  authority  hav- 
ing control  of  the  territories  while  residing  therein, 
which  makes  them  a  species  of  wards  to  the  congress. 

The  second  clause  of  the  first  section  having  been 
eliminated  by  decision  of  the  supreme  court  in  the 
Slaughter-House  cases,  supra,  and  the  declaration  in  the 
first  clause  of  the  constitution  being  unenforcible,  there 
is  but  little  remaining  of  this  amendment. 

The  second  section  requires  the  negroes  to  be  enumer- 
ated in  the  same  way  the  whites  are  counted  for  repre- 
sentation of  the  states  in  the  congress  and  for  the  se- 
lection of  presidential  electors,  if  the  states  will  allow 
them  to  vote  in  certain  specified  elections. 

The  third  section  disfranchises  those  who  had  taken 
an  oath  to  support  the  constitution  of  the  United  States 
and  afterward  engaged  in  the  rebellion,  but  the  congress 
was  authorized  to  relieve  them  of  that  disability  by 
special  act  or  acts,  and  all  who  were  engaged  in  the 
rebellion  have  either  died  or  had  their  disabilities  re- 
moved by  special  acts  of  congress,  so  that  this  section  is 
now  obsolete. 

The  fourth  section  thereof  gives  the  war  debt  a  consti- 
tutional sanction,  and  provides  that  neither  the  United 
States  nor  any  state  shall  pay  for  any  slave  that  had  been 
freed  by  the  thirteenth  amendment  to  the  constitution. 

As  the  states  have  manumitted  the  slaves  by  state 
laws  and  no  one  is  claiming  pay  for  them,  and  there 
being  no  disposition  to  repudiate  the  war  debt,  this  sec- 
tion ceases  to  perform  any  functions.  However,  these 
two  sections  present  curious  features  of  the  human  mind, 
which  may  prove  a  valuable  lesson  to  students  of  states- 
manship. 

The  members  of  congress  who  proposed  this  amend- 
ment, while  preparing  and  proposing  it,  were  under  oath 


AMENDMENTS   TO    THE    CONSTITUTION.  345 

to  support  the  constitution,  and  as  such  ofiScers  they 
were  bound  to  protect  all  citizens  alike  in  the  enjoyment 
of  their  private  property.  Property  in  slaves  was  guar- 
anteed b}-  the  constitution,  so  that  in  preparing  and  pro- 
posing this  amendment  they  were  engaged  in  open  rebel- 
lion to  that  instrument  while  under  oath  to  support  it. 
Therefore  it  is  curious  that  they  could  have  been  im- 
pressed with  the  seriousness  of  the  crime  of  those  who 
had  taken  an  oath  to  support  the  constitution,  after  being 
absolved  from  it,  by  going  out  of  office  before  engaging 
in  rebellion  against  that  instrument,  remain  so  blind  to 
their  own  rebellion  against  the  plain  letter  thereof. 

But  the  states  having  abolished  slavery  in  their  re- 
spective borders,  and  extended  to  their  former  slaves  the 
right  to  vote,  and  to  acquire,  own  and  dispose  of  prop- 
erty in  the  same  way  the  sovereign  white  citizens  do, 
these  two  amendments  no  longer  perform  any  functions 
except  to  threaten  the  tranquillity  of  society,  by  leading 
the  blacks  to  believe  they  have  greater  rights  than  they 
really  have,  which  emboldens  them  to  attempt  to  grasp 
other  privileges  not  due  them. 

The  right  to  vote  may  be  made  of  great  value  to  the 
manumitted  slaves.  If  they  vote  as  their  individual 
opinions  lead  them  to  believe  to  be  their  best  interest, 
each  exercising  his  own  personal  judgment,  and  if  they 
demean  themselves  decently  and  respectfully  toward  the 
white  as  well  as  toward  each  other,  they  will  have  the 
respect  and  sympathy  of  all  good  citizens  to  aid  them  in 
the  strife  of  life,  and  their  votes  will  be  solicited  in  the 
same  -way  the  votes  of  the  whites  are  sought  by  candi- 
dates and  parties. 

But  while  they  continue  to  vote  at  the  dictation  of  any 
one  party,  like  a  herd  of  alarmed  buffaloes  "  running  all 
together,"  without  exercising  their  own  personal  reason 
or  friendships,  how  can  any  individual  or  party  respect 


346  CONSTITUTION   OF   THE   UNITED   STATES. 

them  ?  In  so  doing,  but  for  the  indulgent  sympathy  of 
the  whites,  they  might  be  harshly  treated,  and  more 
strictly  bound  and  limited  in  the  enjoyment  of  privileges 
under  the  state  laws. 

Furthermore,  the  states  united,  must  have  a  common 
agent  or  representative,  else  they  can  not  be  united.  To 
destroy  that  common  agent  would  disintegrate  the  union 
of  the  states.  That  common  agent  must  be  common  to 
all  of  the  states  as  equals,  and  can  not  have  any  interest 
independent  of  the  union  of  states,  wdthout  coming  in 
conflict  with  the  union  ;  and  whenever  it  undertakes  to 
represent  any  people,  except  the  people  of  the  several 
states,  it  is  bound  to  place  itself  in  opposition  to  the  in- 
terest of  the  states  of  the  union,  and  to  that  extent  its 
ability  to  serve  the  several  states,  as  fully  as  its  duty 
requires,  must  necessarily  be  destroyed,  and  the  purposes 
of  the  union  must  be  thwarted,  unless  a  new  common 
agent  could  be  procured. 

The  supreme  court,  however,  has  decided  in  more  than 
one  case,  that  there  may  be  citizens  of  the  United  States 
and  citizens  of  the  states,  consisting  of  different  persons, 
and  that  a  person  may  be  a  citizen  of  one  without  being 
a  citizen  of  the  other,  but  how  can  that  be  as  long  as  the 
United  States  is  simply  the  common  agent  of  the  states 
united?  It  is  true  the  territories  are  under  the  ex- 
clusive control  of  the  congress,  therefore  they  can  not  be 
controlled  by  any  one  of  the  states,  and  personswho  migrate 
to  a  territory  from  a  foreign  nation,  as  soon  as  they  take 
out  their  naturalization  papers,  will  become  wards  of  the 
United  States,  as  they  can  not  become  citizens  of  a  terri- 
tory held  in  trust  by  the  congress  for  the  use  of  all  of 
the  states  alike,  as  equal  owners  of  the  beneficial  interest 
thereof ;  but  the  congress  in  acting  as  the  guardian  of 
that  class  of  wards  to  the  nation,  will  be  acting  as  the 
agent  of  all  of  the  states,  and  in  harmony  with  all  of  the 


AMENDMENTS   TO   THE   CONSTITUTION.  347 

States,  and  simply  carrying  into  effect  the  obligation  of 
the  states  united  as  to  that  class  of  persons,  or  inhabit- 
ants of  the  territories. 

The  Indians  occupj'ing  territor}-  within  the  United 
States,  subject  to  the  jurisdiction  thereof,  are  in  like 
manner  wards  of  the  United  States. 

A  state  may  authorize  emigrants  from  foreign  nations 
to  vote  therein  before  they  have  been  in  this  country 
long  enough  to  be  naturalized  according  to  the  naturali- 
zation acts  of  congress ;  but  the  right  to  vote  does  not 
make  them  citizens,  and  they  would  not  be  entitled  to 
the  privileges  and  immunities  of  citizens  thereof  in  any 
other  state. 

There  has  been  no  case,  that  I  know  of,  before  the  su- 
preme court,  involving  this  question. 

However,  it  was  incidentally  referred  to  in  the  Dred 
Scott  case,  hereinbefore  cited,  and  the  court  held  that  the 
right  to  vote  might  be  extended  to  persons  who  were  not 
citizens,  and  that  the  mere  right  did  not  make  them  citi- 
zens, which  expression  of  the  court  is  fully  sustained  by 
text- writers  on  the  subject. 

Therefore,  by  extending  to  the  colored  male  inhabit- 
ants the  right  to  vote,  a  state  does  not  make  them  citi- 
zens, particularly  as  the  states  extending  that  right  to 
the  colored  race  prescribed  limitations  and  restrictions  %. 
on  them.  And  the  states  may  take  away  from  the  native 
bom  African  inhabitants  the  right  to  vote  at  an}-  time, 
though  that  is  not  likel}'  to  be  done  as  long  as  they  be- 
have themselves  with  only  tolerable  decenc}^  and  patri- 
otism. 

Therefore,  the  colored  race  of  people,  although  bom 
in  the  United  States,  can  not  constitute  any  part  of  the 
national  family  of  sovereign  citizens. 


INDEX. 


Accusation  of  self,  no  one  bound  to 3^8 

Accounts  public,  to  be  published 19° 

Admit  new  states 271 

Adjournment  of  congress 109  to  113 

Of  each  house  of 109  to  1 13 

Admiralty  (see  Judiciary) 239 

Aliens,  who  are 236 

Suits  by  and  against 236 

Ambassadors,  appointment  of 219 

Receiving  of 220 

Dismission  of 228 

Amendment  of  constitution 297 

Amend  article  of  confederation loo 

American  great  principles 23 

Appellate  jurisdiction.     (See  Judiciary). 

Appointing  power  of  president  and  senate 68 

Joint  powers  of  president  and  senate 68,  69 

Of  president  alone 69 

Under  acts  of  congress 125 

Of  congress  and  heads  of  departments 219 

Apportionment  of  representatives no,  332 

Of  direct  taxes 1 10 

Appropriation  of  money 131.  189 

Arms,  right  to  bear 3^6 

Army  and  navy,  congress  to  regulate 183 

Articles  exported  from  states  not  to  be  taxed 189 

Article  five  constitution  shows  a  compact 264 

Arrest  of  members  of  congress 127 

Amendments  to  constitution- 
Article  one 314 

Two 317 

Three 3^7 

Four 317.  318 

Five 31S 

Six 318 

(349) 


350  INDEX. 

Seven 321 

Eight 323 

Nine 324 

Ten 324,  325 

Eleven 325 

Twelve 208  to  215,  329 

Thirteen 329 

Fourteen 332 

Fifteen 335 

Three  and  six  in  conflict 306 

Arts  and  sciences  180 

Attainder,  by  United  States 189 

By  states 192 

Effect  of  in  treason I37 

Bail,  excessive  prohibited 323 

Ballot,  voting  by 208,  209,  255 

Banks,  of  United  States 86 

States  can  not  tax  them 86- 

Bedford's  speech  in  convention 47 

Bills  of  credit,  states  not  to  emit 192 

Bills  of  attainder  forbidden 489 

Boundary,  of  United  States  as  conquered  from  England.  .285  to  292 

Of  first  and  second  companies  under  charter  of  1606 i 

First  company  changed i 

Second  company  changed 3 

Charterto  Earl  of  Clarendon 279 

Resolution  of   Maryland 281 

Remonstrance  of  Virginia  thereto 282 

Cession  by  Virginia  of  surplus  to  United  States 284 

Not  reduced,  by  treaty  either  with  England  or  Spain 285 

Decisions  of  supreme  court  relating  thereto,  12th  Wheaton 

523-530 2^3 

Bounties  and  pensions , 333 

Bribery,  all  officers  removable  for,  by  impeachment 62,  220 

Canals  and  roads,  power  of  congress  over 159  to  173 

Capitation  tax,  how  to  be  laid 189 

Captures,  regulated  by  congress 183 

Census,  when  to  be  taken no 

Cessions,  for  seat  of  government 184 

For  forts,  arsenals,  etc 184 

Charter  governments  (see  Colonies) i,  14  to  30 


INDEX.  351 

Citizens  of  United  States,  who  are 100,    271  to  274 

Commerce,  power  of  congress  over i59 

Among  does  not  mean  between  states 162  to  167 

Common  law  in  colonies 4 

Common  defense 82,  131 

Confederation,  only  amended  by  constitution  of  1787 80 

Congress,  organization  of 109 

Divided  into  two  houses 109 

Each  to  judge  of  election  of  its  members 125 

To  make  its  own  rules  for  proceeding 125 

May  compel  attendance  of  its  members 125 

May  punish  them  for  bad  conduct 125,  126 

Or  expel  them 125,  126 

Members  of  not  to  answer  elsewhere  for  language  in  debate.     61 

Keep  a  journal  and  publish  proceedings 126 

Neither  house  to  adjourn  more  than  three  days  without  the 


other . 


126 


By  concurrence  of  both,  may  adjourn  at  will 126 

May  lay  and  collect  taxes 131  to  142 

Regulate  commerce 162 

Borrow  money 142  to  159 

Establish  rules  of  naturalization I74 

Post-offices  and  post-roads 180 

Promote  science  and  useful  arts 180 

Constitute  tribunals  inferior  to  the  superior  court 181 

Define  and  punish  piracies  182 

Declare  war,  and  provide  for  its  prosecution 183 

Exclusive  power  to  legislate  for  seat  of  government 184 

(This  power  should  be  taken  in  a  qualified  sense). ..  185  to  187 
Make  all  laws  necessary  to  carry  out  the  powers  granted.. . .   187 

May  suspend  writ  of  habeas  corf  us  in  certain  cases 189 

May  declare  punishment  of  treason I37 

Draw  money  from  the  treasury  upon  appropriations 190 

Shall  not  draw  money  from  treasury  except  on  appropria- 
tions     ^90 

Nor  suspend  writ  of  habeas  corpus,  except,  etc 190 

Pass  bills  of  attainder 190 

Pass  bills  ex  post  facto 19° 

Grant  letters  of  nobility 190 

Conscience,  rights  of 3^4 


352  INDEX. 

Constitution — 

Completed  and  agreed  to 53 

Reported  to  congress  with  resolutions, 54 

Approved  and  referred  to  states  by  congress 55 

Approved  by  state  legislatures  and  referred  to  conventions 

of  states, 55 

Ratified  by  state  conventions 55 

Delaware 55 

Pennsylvania 55 

New  Jersey 55 

Connecticut 55 

Massachusetts 55 

Georgia 55 

Marj-land 55 

South  Carolina 55 

New  Hampshire 55 

Virginia 55 

New  York 55 

North  Carolina,  afterward 

Constitution  with  all  amendments 57  to  80 

Retained  union  of,  state  organizations 80,  81 

Also  made  union  of,  the  people  of  the  states 80,  8r 

Certain  provisions  thereof,  taken  from  England 5  to  15 

Ordained,  by  the  people  of  the  states 80,  81,  82;  from  98  to  102 

Preamble,  meaning  of 95  to  106 

Different  interpretations  of 83  to  95 

Messrs.  Pomroy  and  J.  C.  Hamilton 92  to  93 

Judge  Tucker 94 

Supreme  court's  views 82 

Departments  only,  ordained  by  it , 95.  96 

Union  under  it,  is  a  compact 296  to  300 

As  compact,  no  department  ordained  by  it  could  be  party  to  it.  310 
Can  not  be  amended  so  as  to  deprive  any  state  of  equal  suf- 
frage in  the  senate 114  to  117 

It  must  bind  all,  except  the  people  when  in  convention 266 

It  is  the  only  authority  for  every  power 264 

Convention  to  amend  confederation — 

Confederation  was  union  of  state  governments  only.  .80,  81,  114 

Articles  of,  drafted  by  congress 25 

Ratified  by  states 26 

Cause  for  amending  same 33,  34 

Convention  met 34  to  36 


INDEX.  353 

Randolph  resolutions 36  to  40 

Which  were  revised  and  debated 40  to  44 

Patterson's  resolutions 45 

Both  sets  referred  to  committee  of  whole 46 

Committee   of    whole   sustained    Randolph    resolutions    as 

amended 47 

They  were  both  debated 47 

Hon.  Mr.  Bedford's  speech 47 

Effect  of  his  speech 50 

Both  sets  of  resolutions  were  referred  to  committee 50 

Report  of  compromise  of  grand  committee 51 

Compromise  of  said  committee  accepted  by  convention ... .     52 

Controversy  as  to  how  senators  should  vote 52 

Debts  of  confederacy  assumed 304 

Debts  of  United  States  not  taxable  by  states 86 

Declaration   of    Independence 24 

Direct  tax 138,  189 

Discussion  on  right  of  president  to  reject  ambassadors,  222  to  235 
Disqualification  to  hold  oflSce — 

Of  president 206,  333 

Congress no,  333 

Electors 205,  333 

District  of  Colvmibia,  legislation  in  must  be  taken  with  qual- 
ification   184  to  187 

Duties,  power  of  congress  to  lay 131  to  142 

Must  be  uniform 131  to  142 

States  prohibited  from 192,  193 

Elections,  of  President 205  to  209 

Of  representatives  in  congress no 

Senators 112 

Vice-president 20S,  209 

Embargo,  power  to  lay 172 

Excises,  what  are 131  to  133 

Exclusive,  what  powers  of  congressare 131,  142,  159 

Executive  Department 205 

Organization  of 205 

Duration   of   office  of 205 

Re-eligibility  (see  President) 205  to  209 

Exports,  no  duties  can  be  laid  on 189 

Ex  post  facto  laws,  to  congress  prohibited 189 

And  to  the  states 192 


354  INDEX. 

Felonies  on  the  higti  seas 182 

Fines  and  forfeitures  may  be  pardoned  by  president 219 

Freedom  of  the  press 314 

Of  speech 314 

Of  rehgion 3^4 

Fugitive  criminals 269 

General  welfare,  power  to  tax  for 131 

Georgia,  original  constitution   for 29 

Government  of  United  States — 

Corporate  agent  of  the  people 95 

Federal  republic  in  form 80  to  95 

Republican  form,  guaranteed  the  states 72 

Grand  jury,  in  crimes 237 

Habeas  corpus,  writ  of  not  to  be  suspended  unless 189 

Health  laws  belong  to  the  states 192,  324 

High  seas,   what   is 182 

Crimes  on 182 

House  of  representatives  (see   Congress) 109 

Impairing  contracts,  states  prohibited  from 192  to  194 

Impeachment,  power  of  in  house  of  representatives in 

But  to  be  tried  before  the  senate 113 

When  president  or  vice-president  is  tried 113 

Proceedings  on  trial 113 

Who  are  liable  to 220 

For  what  offenses 220 

Imports,  no  state  can  tax 192 

Impost  (see   Duties) 131.  192 

Independence,   Declaration  of 24 

Indians,  commerce  with 159 

Indictment,  when  necessary 318 

Inferior  officers,  appointment  of 219 

Information  in  criminal  cases 318 

Injunctions  by  United  States  courts 254  to  264 

By   state   courts 254  to  264 

Insolvent  laws 1 78 

Internal  improvements  (see  Appropriations) 131 

Inventions,   patents   for 180 

Jeopardy  of  life  or  limb 318 

Journals  of  each  house 126 

Judges,  appointment  of 219 

Terms  of 236 

Duties  of,  judicial  only 236 


INDEX.  355 

Compensation  of 236 

Impeachment  of 220 

Judgments  of  other  states 268 

Judiciary  department — 

Organization  of 236 

Appointment  of  judges 219 

Tenure  of  office 236 

Establishment  of  courts 236 

Jurisdiction  of   courts 236 

Original   jurisdiction 236 

Appellate  jurisdiction 236 

Parties  to  suits  in 236 

when  state  a  party 236 

Suits  by  and  against  ambassadors 236 

Admiralty  suits 236 

Suits  by  United  States 236 

between  citizens  of  different  states 236 

under  grants  by  different  states 236 

by  or  against  foreigners 236 

Appellate  jurisdiction  over  state  courts 236 

regulation  of  by  congress 236 

Jury,  trials  by 237-318 

In  criminal  cases 3^° 

In  civil  cases 321 

Lands,  public,  power  of  congress  over 271 

Laws  of  United  States,  supremacy  of 303 

Law  of  the  land 303 

Legislation,  when  exclusive  in  congress 64 

Legislation  exclusive  in  congress  in  ceded  places 64 

On  the  high  seas 1S2 

Legislature  (see  Congress) 109 

Letters  of  marque  and  reprisal — 

Power  of  congress  to  grant 1S3 

States  prohibited  from  granting 192 

Liberty  of  speech 3^4 

Of  the  press 2>^4 

Of  conscience 3M 

Not  accountable  elsewhere  for  language  in  debate  in  congress.     61 

Louisiana  province 279-2S4 

Madison's  letter  to  Sparks 53 

Manufacturers,  can  congress  protect 1 32-1 37 

Martin's,  Luther,  report  to  Maryland 52 


356  INDEX. 

Maryland,  when  first  constitution  was  made 30 

Measures  and  weights,  congress  to  regulate 142 

Militia,  power  of  congress  over 183 

To  discipline  and  govern  same 183 

When  called  forth,  United  States  to  command  them 183 

Ministers,  public,  appointment  of 219 

Receiving  of 220 

Right  to  sue 236 

Money,  coinage  of ^42 

Power  to  borrow ^42 

Revenue  bills 189 

Morris,Gouverneur,  letter  to  Pickering 241 

Naturalization,  power  of  congress  as  to i74 

Navigation,  regulation  of  by  congress 168 

Navy  and  army,  power  of  congress  to  establish  and  regulate. .   183 

Negative  of  president  on  acts  of  congress 129 

Neutrality  proclamation  in  1793 222 

New  England,  origin  of 3 

New  Hampshire,  when  first  constitution  was  made 27 

New  Jersey,  when  first  constitution  was  made 28 

New  York,  when  first  constitution  made 3° 

Nobility,  prohibition  of  titles  of 190-192 

North  Carolina,  when  first  constitution  was  made 27 

Oath  of  office,  by  president 207 

By  senators 60,  303 

By  representatives 3^3 

All  officers  to  be  bo\ind  by  oath  to  support  constitution 303 

Obligation  of  contract,  what  it  is 198 

Office,  tenure  of  judges 236 

Of  president 205 

Power  of  president  to  appoint 219 

Disqualification  to  hold  that  of  president 206 

Of  vice-president 209 

Offices,  inferior,  in  sense  of  constitution 181 

Original  jurisdiction  (see  Judiciary) 236 

Paper  money,  prohibited 192-142 

Pardons  and  reprieves 219 

Patents  for  inventions 180 

Patterson  resolutions  in  convention 45 

People  of  the  states  ordained  the  constitution 80-95 

Of  the  states,  constitute  the  nation 95 

Piracy,  power  to  define,  etc ••••  182 


INDEX.  357 

Plymouth  colony,  origin  of,  etc 3 

Post-offices  and  post-roads 180 

Powers  of  congress  (see  Congress) 109 

Powers  reserved  to  the  people 324 

Preamble  to  constitution 82 

Press,  liberty  of 314 

Presidents,  negation  on  acts  of  congress 129 

Mode  of  choice  of 255 

Re-eligibility  of  to  office 206 

Duration  of  office  of 205 

No  election  of,  by  electors 205 

Vacancy  of  office  of 206  to  216 

Powers  of 219 

Duties  of 206  to  219 

May  require  opinion  of  heads  of  departments 219 

May  call  forth  militia 183 

Regulate  and  discipline  same 183 

With  approval  of  senate  may  make  treaties  (see  Treaties).  219 

Resignation  of 67,  206 

Pardons  and  reprieves  by 219 

Qualifications  of 206 

Compensation  of 206 

Death  of 207 

Commander  of  army  and  nav>' 219 

May  convene  and  adjourn  congress 219 

Receive  ambassadors,  etc 220 

Impeachment  of 113 

Judgment  of  impeachment  of 113 

Veto  power  of 1 29 

President  of  the  senate 112 

Presents  from  foreign  governments,  not  allowed 190 

Process  of  law,  what  it  is . . .  31S  to  323 

Proclamation  by  president 000 

Prohibition  on  United  States 189,  318  to  329 

On  states 192 

Property  taken  for  public  use 318 

Property  of  United  States,  congress  has  control  of 271 

Proprietary  or  charter  governments  of  colonies i,  5,  15 

Protective  duties  (see  Taxes) 131 

Provincial  governments,  what 1,5,  15 

Public  lands,  under  control  of  congress 271 

Purchase  of  foreign  Territory  by  United  States 271  to  291 


358 


INDEX. 


Qualification  of  officers — 

Of  members  of  house  of  representatives no 

Of  senate "^ 

Of  president 206 

Of  vice-president 209 

Of  judges,  (none  prescribed). 

Quartering  troops 3^6 

Quorum  of  each  house 125 

Ratification  of  constitution,  how  made 55  to  56 

Records  and  laws  of  states,  how  proven,  etc 268 

Religious  tests  prohibited SM,  303 

Representatives — 

In  colony  of  Virginia 2  to  4 

In  congress 100  to  104 

How  chosen 100  to  104 

Tenure  of  office ^  ^° 

Qualifications  of ^  ^° 

Apportionment  of ^  ^° 

Speaker  of  house ^^^ 

Impeachment  of .- ^^^ . 

Disqualification  of 332 

Reprieves  and  pardons 219 

Power  of  president  to  grant 219 

Reprisals  (see  LETTERS  OF  Marque) 183 

Reserved  rights  and  power  of  the  people 295,  324 

Retrospective  laws 189 

Revenue,  bills  to  raise 189,  131 

Rights  reserved  to  states  and  people 324 

Roads  and  canals,  power  of  congress 159  to  173 

Seat  of  government 184 

Sedition  and  alien  acts,  not  constitutional 148 

Senate,  organization  of ^  12 

How  chosen 112  t  o  120 

Number  of  senators 112 

Term  of  senators 1^2 

Vacancies  in,  how  supplied 122 

Qualifications  of ^^2 

Vice-president,  president  of 112 

Authorized  to  try  impeachments 113 

Disqualification  of  members 321 

Slavery  abolished 3^9 

Soldiers,  quartering  of 3^6 


INDEX.  359 

South  Carolina,  first  constitution 27  I j  28 

Speaker  of  house  of  representatives 1 1 1 

Speech,  liberty  of 314 

Speech  of  Mr.  Bedford  in  the  convention 47 

States,  admission  of  new 271 

Condition  upon  which  they  may  be  admitted 271 

First  and  second  condition 271 

Third  condition 271  to  274 

Fourth  condition 274  to  292 

Prohibitions  of — 

No  state  to  make  treaties,  form  alliances  or  compacts 192 

Nor  grant  letters  of  marque 192 

coin  money 192 

emit  bills  of  credit 292 

Nor  make  any  thing  but  gold  and  silver  coin  a  tender 192 

Nor  make  laws  impairing  the  obligations  of  contract 192 

Nor  pass  bills  of  attainder  or  of  nobility 192 

Nor  without  the  consent  of  Congress 192 

Keep  an  army  or  navy 1 93 

Lay  any  duty  or  imposts 192 

Shall  not  tax  obligations  of  the  United  States 86 

Nor  tax  imports 192 

Nor  lay  tonnage 193 

Nor  engage  in  war,  unless,  etc 193 

Suits  by  and  against  states  (see  Judiciary) 240 

At  common  law 321,  322 

Supremacy  of  constitution,  etc 303 

Taxes,  power  of  congress  to  lay 131 

Must  be  to  pay  debts  or  provide  for  common  defense  or  gen- 
eral welfare 131 

Direct  what 138 

Power  not  exclusive 131 

Restriction  of  power  in 136-138 

Tender  laws,  states  limited  in  passing 192 

Territories  of  United  States,  congress  has  control  of 171 

Tests,  religious,  prohibited 314 

Testimony,  criminals  not  bound  to  give  against  themselves. . . .  318 

Tonnage  duties  by  the  United  States 193 

Treason,  definition  of 237 

Evidence  of 237 

EflFect  of  con\-iction  of 237 

Punishment  of 237 


360  INDEX. 

Treaties,  states  prohibited  from  making 192 

Power  of  president  and  senate  to  make 219 

Trial  of  crimes,  in  what  place 70,  318 

Must  be  by  jury 70,  318 

Certain  civil  cases  must  be  by  jury 321 

Troops,  quartering  of  prohibited  unless,  etc 216 

United  States  (see  Constitution  of) 57-8o 

Supremacy  of  laws  of 303 

Right  to  sue 236 

Right  to  contract 131,  142,  219 

No  right  to  purchase  foreign  territory  except  for  common 

defense  or  naval  stations 271-292 

May  acquire  domestic  territory  for  certain  uses 184 

Unity  of  the  executive 205 

Vacancies  in  office  (see  President) 205 

Senators  in  congress 120 

Representatives  in  congress ill 

President  may  appoint  to  fill  certain  vacancies  during  recess 

of  congress 219 

In  office  of  president 206-216 

Vice-president,  how  chosen 208 

Shall  be  president  of  senate 112 

Vacancy  in  office  of 113 

Impeachment  of 220 

Duration  of  term  of 205 

Resignation  of 206 

Virginia,  origin  and  settlement  of i 

Warrants,  general,  prohibition  of 317 

"War,  congress  sole  power  to  declare 183 

Weights  and  measures,  congress  to  regulate 142 

Witnesses,  criminals  not  required  to  be  against  themselves 318 

Criminals  entitled  to  compulsory  process  for  in  their  behalf.  319 
Wreck  at  sea,  congress  may  regulate 182 


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